Wood v. Sloan.

• Decision Date: 09 March 1915
• Docket Number: No. 1577.,1577.
• Citation: 20 N.M. 127,148 P. 507
• Parties: WOOD ET AL.v.SLOAN.
• Court: New Mexico Supreme Court

20 N.M. 127

148 P. 507

WOOD ET AL.

v.SLOAN.

No. 1577.

Supreme Court of New Mexico.

March 9, 1915.Rehearing Denied May 15, 1915.

Syllabus by the Court.

The general rule is that where an independent contractor is employed to construct or install any given work or instrumentality, has constructed or installed same, the same has been received and accepted by the employer, and the contractor has been discharged, he is no longer liable to third persons for injuries received as a result of defective construction or installation.

To the general rule certain well-defined exceptions exist, and they may be divided into two general classes, viz.: (1) Those where the thing dealt with is imminently dangerous in kind; and (2) those where the thing dealt with is not imminently dangerous in kind, but is rendered dangerous by defect.

In the first class of cases, of which the manufacture or sale of poisons, explosives, guns, etc., form an example, the law will not tolerate negligence. The duty to take care is a duty to the public, so that the lives and health of the people may not be jeopardized.

In the second class of cases, the independent contractor, in order to be liable to third persons, not parties to the contract, must be shown to have had knowledge of the defect and its dangerous character when he put the same out.

Knowledge of a defect and its dangerous character often evidences malice, deceit, or fraud, but neither malice, deceit, nor fraud on the part of the independent contractor are necessary to create liability to third persons, if, as a matter of fact, the independent contractor has knowledge of the defect and its dangerous character. If he has knowledge, he will be held to intend all the natural, usual, and probable consequences of his act.

Actual knowledge of the defect and danger is not always required, but such knowledge may, under some circumstances, be inferred or imputed.

Independent contractors are sometimes held liable to strangers to their contract upon the doctrine of implied invitation. That is to say, that where one undertakes with another to construct a place for the doing of certain work, such as a scaffold or stage, he may be liable to any one who is injured while using the place in the performance of such work.

If an independent contractor manufactures an instrumentality defectively, and the defect renders the same dangerous, and he does not know of the defect and its dangerous character by reason of his failure to exercise due care, he is guilty simply of negligence. But if he knows of the defect and its dangerous character, and puts out the thing in deceit, fraud, malice, or perhaps other bad motives, he is not guilty of negligence at all. In such circumstances, the transaction leaves the field of negligence and passes into the domain of tort.

Error to District Court, Santa Fé County; Abbott, Judge.

Action by J. H. Sloan against J. B. Wood and another, copartners doing business as the Wood-Davis Hardware Company. Judgment for plaintiff, and defendants bring error. Reversed and remanded, with directions to award new trial.

See, also, 137 Pac. 578.

Where an independent contractor knows of a defect and its dangerous condition, he will be presumed to have intended all the natural, usual, and probable consequences of his act.

Wilson, Bowman & Dunlavy, of Santa Fé, for plaintiffs in error.

Renehan & Wright, of Santa Fé, for defendant in error.

PARKER, J.

The defendant in error will be referred to as plaintiff, and the plaintiffs in error as defendants, as they were situated in the court below.

One Jennie Schaeffer was the owner of an office building in the city of Santa Fé, and had employed defendants to install a stationary washstand, and to connect the same with the waterworks system of the city, which was done, and the work accepted by the owner. During said time plaintiff was the tenant of the owner, and maintained his office for the practice of his profession of physician and surgeon in the room where the washstand was installed. In making such installation, it became necessary to remove a board from the floor extending out from rear to front of the washstand. This board was replaced, after the installation, in such a manner that, when plaintiff stepped upon it while attempting to procure a glass of water for a patient, it gave way and injured the plaintiff by allowing his foot and leg to go through the floor. The washstand was installed April 9, 1912, and plaintiff used the same with safety until July 4, 1912, when the accident occurred. The washstand was installed close to the northwest corner of the room, and plaintiff ordinarily approached the same from the south side, thus not stepping upon the board in question, at least not with his full weight. On the occasion of the accident he approached the washstand from the east or front of the same, and placed his whole weight upon the board, and it gave way under him. The defect in replacing the board consisted in failing to support the end, which extended out to the front of the washstand, with a cleat nailed to a joist, as was necessary to render it safe; the end of the board not reaching quite far enough to rest upon the joist. The case was tried to a jury and resulted in a verdict for plaintiff.

The theory upon which the case was submitted to the jury is stated in instruction 8a, and is to the effect that the defendants were independent contractors, as shown by the pleadings, and that the general rule of law is that they are not liable to third persons for injuries received, due to defective work after the same has been completed, turned over to and accepted by the owner, unless the work was so performed and in such a place as to constitute a nuisance per se, or so negligently defective as to be imminently dangerous to third persons. In addition to the general verdict, the jury made special findings, among which are the following:

“Question No. 1. State whether you find that, at the time plaintiff fell through the floor, he approached the washstand in an unusual manner, and thereby imposed upon the board alleged to have given way an unusual and extraordinary weight. Answer to Question No. 1. No.”

“Question No. 2. State whether you find the board was replaced with sufficient firmness and security to permit its being used ordinarily without danger to a person of ordinary weight and such person using the same in an ordinary manner. Answer to Question No. 2. No.”

“Question No. 3. State whether you find there was imminent danger resulting from the manner in which the board in the floor was replaced to any person of ordinary weight in approaching and using the basin and stepping upon the said board in a normal and ordinary way. Answer to Question No. 3. Yes.”

“Question No. 5. State whether you find that the defendants knowingly, intentionally, willfully, maliciously, and fraudulently replaced the board so that the same could not sustain the weight of a person of ordinary weight stepping upon it. Answer to Question No. 5. No.”

Defendant moved for a judgment non obstante veredicto, which motion was denied, and judgment was rendered on the general verdict. The motion for judgment non obstante was based upon the special finding No. 5, above set out.

It thus appears that defendants were independent contractors, completed their contract, turned over their work to the owner, and the same was accepted by her. They had no contractual relations with the plaintiff, and owed him no contractual duty. It further appears from the special findings that they did not “knowingly, intentionally, willfully, maliciously, and fraudulently” replace the board so that it would not sustain the weight of an ordinary person stepping upon it. This squarely raises the question of the liability of independent contractors to third persons after they have completed their work, and the same has been accepted by the owner.

[1] The general rule upon this subject may be stated as follows: Where an independent contractor is employed to construct or install any given work or instrumentality, has constructed or installed the same, the same has been received and accepted by the employer, and the contractor has been discharged, he is no longer liable to third persons for injuries received as a result of defective construction or installation. 2 Cooley on Torts (3d Ed.) p. 1486; 1 Thompson, Neg. (2d Ed.) § 686; 29 Cyc. 478; 16 A. & E. Ency. Law, 209.

[2] Certain exceptions to the general rule above stated exist, and they may be divided into two general classes, viz.: (1) Those where the thing dealt with is imminently dangerous in kind; and (2) those where the thing dealt with is not imminently dangerous in kind, but is rendered dangerous by defect.

[3] In the first class of cases the thing dealt with is so imminently dangerous in kind as to imperil the life or limb of any person who uses it. In such circumstances, the manufacturer owes a positive duty to every person into whose hands the thing shall lawfully come and be used in the ordinary manner in which it was intended for use. The liability arises out of the public duty to protect every one to whom the thing shall lawfully come for its intended use, against the certain disaster which must result if proper care is not used. The degree of care exercised must be, at least, in proportion to the peril involved. 2 Cooley on Torts (3d Ed.) p. 1488. Familiar examples of such things are poisonous drugs incorrectly labeled, patent medicines containing harmful ingredients, hair dressings which injure health, dangerous chemicals, unwholesome food, a defective gun, explosives, and the like. See Thomas v. Winchester, 6 N. Y. 397, 57 Am. Dec. 455, which is a leading case; Blood Balm Co. v. Cooper, 83 Ga. 457, 10 S. E. 118, 5 L. R. A. 612, 20 Am. St. Rep. 324; Bishop v. Weber, 139 Mass. 411, 1 N. E. 154, 52 Am. Rep. 715; Favo v. Remington Arms Co., 67 App. Div. 414, 73 N. Y. Supp. 788; 2 Cooley on Torts (3d Ed.) p. 1488...