Young v. Smith & Kelly Co

• Decision Date: 21 December 1905
• Citation: 124 Ga. 475,52 S.E. 765
• Court: Georgia Supreme Court
• Parties: YOUNG . v. SMITH & KELLY CO.

52 S.E. 765

124 Ga. 475

YOUNG .

v.SMITH & KELLY CO.

Supreme Court of Georgia.

Dec. 21, 1905.

Neglicence —Defective Building—Liability of Subcontractor.

An independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer, and the same has been accepted by him, though the injury result from the contractor's failure to properly carry out his contract.

[Ed. Note.—For cases in point, see vol. 37, Cent. Dig. Negligence, § 68.]

(Syllabus by the Court.)

Error from the City Court of Savannah; T. M. Norwood, Judge.

Action by Henry Young against the Smith & Kelly Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Henry Young brought an action against the Smith & Kelly Company, a corporation, for damages alleged to have been sustained by him on account of the negligence of the defendant. The material allegations of the petition were as follows: The foreign owners of a steamship consigned her to J. F. Minis & Co. at the port of Savannah, Ga., to be loaded by them with cotton. Prior to the delivery of the ship to Minis & Co., it was delivered to the Smith & Kelly Company, to be loaded with phosphate rock. The rock was put into the hold of the vessel through its hatches, and the Smith & Kelly Company contracted with the owners of the vessel to re place and securely fasten the hatches on the sides or combings thereof; which agreement was one usually entered into between shipowners and stevedores doing business in the port of Savannah, and was a custom well known and understood among shipowners, ship laborers, and employes in that port. Within 24 hours after the loading of the vessel with phosphate rock by the Smith & Kelly Company had been completed, it was placed by such corporation in the custody of the consignees, Minis & Co., to be loaded with cotton. Plaintiff, a laborer of Minis & Co., went to one of the hatches, with the intention of removing the top of the same in order to store cotton in the hold. The Smith & Kelly Company, or its servants, had covered this hatch with tarpaulins. Plaintiff walked on the top of this hatch, as usual and customary in such cases, and in the line of his duty, to remove the tarpaulins and take up the covering of the hatch, which had been placed there by the servants of the Smith & Kelly Company. While engaged in this work, one of the compartments or partitions of the hatch, by reason of being insecurely fastened by the servants of the Smith & Kelly Company, gave way and turned over, precipitating plaintiff into the hold below, injuring him as set out in the petition. The petition was dismissed on general demurrer, and the plaintiff excepted.

E. H. Abrahams and R. L. Colding, for plaintiff in error.

O'Connor, O'Byrne & Hart-ridge, for defendant in error.

FISH, C. J. (after stating the facts). The general rule is well established that an independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury result from the contractor's failure to properly carry out his contract. 1 Thomp. Neg. par. 686; Whart. Neg. § 438 et seq.; 16 Am. & Eng. Enc. Law, 209. There are some modifications of this rule. Among them are cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons. See...