126 Tenn. 576 | Tenn. | 1912
delivered the opinion of tlie Court.
Plaintiff brought this suit in the court below to recover damages of the defendant for the wrongful death of her husband while in the employ of one Jones, an independent contractor of the defendant. There was a verdict and judgment for f500, which the court of civil appeals reversed, and dismissed the suit. The questions presented in this court upon the petition of Mrs. Davis for writs of certiorari arise solely upon the amended declaration and the demurrers thereto The amended declaration is as follows:
“And plaintiff further avers, in addition to the matters set out in her original declaration, that at the time and place aforesaid one W. H. Jones was carrying out a contract he had with the defendant. Cam-Wyman' Lumber Company, to cut and haul logs and to deliver them to said company along its tram railroad. In the performance of his part of said contract the said W. H. Jones erected cheap plank or frame houses where his employees camped or stayed while engaged in their work; and, having almost completed his work at this point, the said Jones directed his employees to' tear down the lumber camp and load it on one of the cars of defendant, Cam-Wyman Lumber Company (left there for that purpose), so that the lumber could be conveyed down defendant’s track about two miles, where another camp was to he erected. And plaintiff avers that defendant furnished a car for said lumber and g’ave permission to said Jones, or his employees, to convey said*580 car by gravity, it being all tbe way down grade, to the place near which the new camp was to be erected.
“And plaintiff’s said husband, while in the employ of said W. H. Jones, and while on said car in the line of his duty, and while obeying the orders of said Jones and his immediate superior, whose orders it was his duty to obey, and while expediting the business of his employer, was, by reason of the negligence of the defendant in furnishing to said Jones and .his employees a car that was unsafe and defective, the brakes thereon being out of repair and insufficient to hold said car and prevent its running away, thrown from said runaway car, and was killed as aforesaid.”
The defendant demurred upon the following grounds:
“(b) Because there is no averment showing any contractual relation between this defendant and the intestate, or showing that this defendant owed him any duty whatever; and
“(c) Because the averment that this demurrant furnished a defective car to Jones, unsupported by any other averment showing an obligation to furnish a car not defective, is not sufficient to show that an employee of Jones has a right of action against this defendant for injuries received by reason of furnishing a defective car.”
The court of civil appeals sustained the demurrer and dismissed the suit, and in so doing that court said:
“The second count does not allege that the car was furnished to the deceased, or that there was any contractual relations between the defendant and the de*581 ceased, or that tbe defendant owed the deceased any obligation or duty whatever with respect to said car. It is not even averred in said second count that any obligation or duty rested upon the defendant to furnish Jones a car that was not defective. And in the absence of these material averments we are of opinion that the second count does not aver a sufficient cause of action against the defendant in favor of the plaintiff. Said count should have averred or disclosed some duty or obligation from the defendant to the deceased. White v. Railroad, 108 Tenn., 739 [70 S. W., 1030]; Baker v. Railroad, 106 Tenn., 490 [61 S. W., 1029, 53 L. R. A., 474].”
It will be observed that the court of civil appeals was of opinion that the amended declaration was fatally defective because of the absence of averments that the car was furnished to the deceased, or that there was any contract relation between defendant and deceased, and that the averment in the declaration failed to show that the defendant owed the deceased any duty whatever. In addition, that court was of opinion that it was necessary for plaintiff to aver that an obligation rested upon the defendant to furnish a suitable car to Jones, the deceased’s employer, and that the facts averred failed to show such duty.
The cases cited by that court are White v. Railroad, 108 Tenn., 739, 70 S. W., 1030, and Baker v. Railroad, 106 Tenn., 490, 61 S. W., 1029, 53 L. R. A., 474. They do not determine the questions presented in this case! White v. Railroad determined that a failure to aver the
Baker v. Railroad was an action brought by an employee of an independent contractor, the ice company, to recover damages of the railroad company for injuries which the plaintiff received in an effort to ice a refrigerator car owned by the defendant in pursuance of a contract existing between it and the ice company. The roof of the car was covered with snow and ice, and the plaintiff fell from the top of the car while in the act of hoisting ice by hand which was to be put into the car. The declaration failed to aver that the defendant had agreed to furnish any particular appliances or machinery for the accommodation of the workmen of the ice company in hoisting the ice into the top of the car, and plaintiff’s injuries were not caused by any defect in the construction or maintenance of the appliances used in icing the car. The court placed the case upon the ground that the declaration failed to show that the de
Hence, the cases cited by the court of civil appeals are plainly distinguishable from the case in hand, because the declaration under consideration does show that the deceased was rightfully upon the premises, that the defendant furnished the defective car, and that the car was being used by the contractor in and about the business of the contract. The question presented is whether the defendant, upon the foregoing averments, owed a duty to the servant of its independent contractor when it agreed and undertook to furnish a car to be used by the contractor’s servants in and about the operations covered by the contract of the defendant and the contractor.
It cannot be doubted that the deceased was rightfully upon the premises and engaged in his master’s work with the defective car furnished by the defendant for that purpose.
It was well settled in Powell v. Construction Co., 88 Tenn., 693, 13 S. W., 691, 17 Am. St. Rep., 925, that the employer of an independent contractor, if he be a fit and proper person, and the work be not in itself unlawful, or a nuisance in itself, or necessarily attended Avith danger to others, will not be responsible for the negligence of the contractor or his servants for injuries to third persons. This rule is based upon the principle that a person is not liable for the acts or negligence of another, unless the relation of master and servant or principal and agent exist between them.
The declaration fairly shows that Jones was an independent contractor, that the deceased was an employee of Jones, and that the work in hand at the time of the death of the deceased was covered by the contract between Jones and the defendant. The declaration does not state whether the alleged defective car was furnished to Jones by the defendant for compensation, or as a mere accommodation to Jones, nor does it, show how long the alleged defect had existed in the car, nor does it aver that the defendant knew of the defect at the time he furnished the car to Jones, or that by due care he should have known it. Upon these averments alone we cannot say that the defendant owed a'duty to Jones to furnish the car, or that it owed a duty to the deceased to inspect the car before it was furnished. Nor does it appear that the defendant failed to ispect the car, or that the defect had existed for such length of time that the defendant would be held in law to have known of it before he furnished it to Jones. It does appear that the car was defective at the time it ’was delivered to Jones for the use of himself and his employees in moving the lumber. While the declaration shows that the
It is not shown to have been a part of the contract between Jones and defendant that defendant was to furnish any part of the implements for the use of Jones in the performance of the work included in the contract. King v. N. Y. C. & H. R. Co., 66 N. Y., 187, 23 Am. Rep.,
We have found no case holding that the contractee is liable to the servant of the contractor for using an appliance belonging to the contractee which had been furnished to the contractor, not as a fulfillment of any obligation of the contract, but merely for the accommodation of the contractor. In such a case, the duty of inspection and repair is upon the contractor. This is especially true, in the absence of any averment that the contractee knew of the defect, or upon the exercise of due care should have known it. Bush v. Grant, supra.
Affirmed,