Waugh v. Shunk

• Citation: 20 Pa. 130
• Parties: Waugh <I>versus</I> Shunk.
• Decision Date: 20 December 1852
• Court: Pennsylvania Supreme Court

20 Pa. 130

Waugh versus Shunk.

Supreme Court of Pennsylvania.

December 20, 1852.

ERROR to the Common Pleas of Armstrong county.

Phelps and White, for plaintiff.—As to the first assignment, it was contended that the profession of the plaintiff implied skill, and a want of it or an omission to exercise it was imputable to him as

gross negligence: Chitty on Con. 374; 1 W. & Ser. 66, Gamber v. Wolaver.

2. The evidence rejected would have been an item to show a want of skill.

3. There was no evidence to show the qualification of Robinson to take the deposition: 5 Ser. & R. 248, Keller v. Nutz. The defendant did not attend, it was ex parte: 3 Bin. 539; 2 Barr 22, Philippi v. Bowen.

Lee, for defendant in error.—It was testified that the furnace stack was partly erected when Shunk took charge of its construction, and all that could properly be required of him would be ordinary diligence and reasonable skill in its completion according to the plan on which it was commenced. Hence the part of the charge that "the overseer does not warrant the successful operation of the furnace, and was not liable for losses resulting from the imperfect manner of its construction, unless guilty of gross negligence or wilful misconduct."

2. The plaintiff was not bound to be prepared to meet a charge of unskilful construction in a specific case.

3. It was alleged that the notice of taking the deposition stated Robinson to be an alderman in the city of Allegheny.

The opinion of the Court was delivered, December 20, by WOODWARD, J.

The defendant in error brought this action of assumpsit to recover compensation for services rendered the defendants (now plaintiffs in error), in 1846 as manager in the erection of a blast furnace in Mercer county, for the manufacture of pig metal by the use of raw bituminous coal.

The defence set up was that the work was so unskilfully done that it did not answer the purpose designed, and that a portion of it had to be taken down, altered, or rebuilt, at a great delay and expense to the defendants.

Evidence having been given on the one side and the other, the Court instructed the jury to inquire, 1st. How long the plaintiff was in the defendants' employ. 2d. What were his services worth, and how much had he received. In ascertaining how much his services were worth, the jury were directed to consider the evidence in reference to the manner in which the work was performed, as the value of an overseer in the erection of a furnace would depend much on the degree of skill exercised by him for his employers' benefit. Then followed the remark which is assigned for error: — "The overseer does not warrant the successful operation of the furnace, and is not liable for losses resulting from the imperfect manner of its construction, unless there has been gross negligence or wilful misconduct."

The charge is to be taken altogether, and so taken, we think it teaches the doctrine that a man who holds himself out to the world as skilled in a particular branch of industry, and who undertakes to perform a piece of work in his appropriate art, is entitled to compensation, on a quantum meruit, whatever the consequences resulting from his imperfect performance, unless there have been gross negligence or wilful misconduct.

To this doctrine we cannot subscribe. Where skill, as well as care is required in performing the undertaking, if the party purport to have skill in the business, and he undertakes for hire, he is bound to the exercise of due and ordinary skill...