Peerless Manufacturing Co. v. Bagley
85 N.W. 568
Mich.
1901
Check Treatment
Grant, J.

(after stating the facts). It appears conceded that there was evidence of negligence on the part of' the General Fire Extinguisher Company in putting in the sprinkler heads in the skylight arranged to fuse at 155°. That temperature proved too low. They should have been arranged to fuse at a higher temperature. The sprinkler plant was installed in September. In the following July, with a temperature outside at 94°, one of the sprinkler heads fused. A few days afterwards the remaining sprinkler head, when the temperature outside was about the same, fused when the temperature in the skylight had reached 146°. It was undoubtedly assumed, on the part of the agents of the extinguisher company, that the temperature within the skylight would not reach that degree; but they made no effort to determine the degree-of temperature of the skylight in hot weather. If they relied upon experiences elsewhere, it is not shown upon this record. An experienced witness for the defendants-testified that they should be set with a leeway of about 30°, and that he would not locate a 155° sprinkler head at a place where he knew the temperature would reach over 135°. We must, therefore, enter upon a determination of the defendants’ liability with the fact established that their contractor, the extinguisher company, was guilty of negligence.

It is also established that the defendants had had no ex*229perience with, or knowledge of, the construction of the ¡sprinkler apparatus; that they employed a standard company of long experience and of good reputation, and that the system was one in common use. They had, therefore, exercised that prudence which the law requires in choosing independent contractors, and no negligence is directly attributable to defendants. It was to the interest of the ■defendants, as well as that of the plaintiff, to have a proper apparatus supplied. In case of flooding, both would be damaged.

Did the employment of such a contractor relieve the defendants from liability to plaintiff ? They insist that it did; that the case is within the rule that, when one employs a competent, experienced, and independent contractor to do a lawful work, he is not liable, either for defects in the system or in the apparatus or machinery. The learned counsel cite Devlin v. Smith, 89 N. Y. 470 (42 Am. Rep. 311); King v. Railroad Co., 66 N. Y. 181 (23 Am. Rep. 37); Engel v. Eureka Club, 137 N. Y. 100 (32 N. E. 1052, 33 Am. St. Rep. 692); McCafferty v. Railroad Co., 61 N. Y. 178 (19 Am. Rep. 267); Miller v. Railroad Co., 125 N. Y. 118 (26 N. E. 35). None of those cases involve the relation of landlord and tenant. They are cases coming clearly within the rule as to non-liability for the negligence of independent contractors. There is, however, another rule, and which may be called .an exception to that above stated, viz., that, where one owes an absolute duty to another, he cannot acquit him¡self of liability by delegating that duty to an independent contractor. To apply the rule to the present case, it may be thus stated: Where a landlord undertakes to make repairs or improvements for his tenant, he cannot relieve himself of the consequences of neglect in the performance of his agreement by employing an independent contractor. Thus, where a landlord undertook to put a new roof on the building of his tenant, and he let the contract to an independent contractor to perform the work, and the ¡goods were damaged by rain through the negligence of *230the contractor, the landlord was held liable. Wertheimer v. Saunders, 95 Wis. 573 (70 N. W. 824). Where the landlord made repairs, and a joint of pipe was improperly-constructed, whereby the water flowed from the roof through onto the plaintiffs goods, the landlord was held liable. Worthington v. Parker, 11 Daly, 545. Where a drain had been constructed by an independent contractor, and after its acceptance the water flowed through it into an adjoining cellar, through the negligence of the contractor, the owner of the building was held liable. Sturges v. Theological Society, 130 Mass. 414 (39 Am. Rep. 463). A landlord assuming to make repairs, though not required to do so by his lease, is responsible for his lack of skill in making them. Gill v. Middleton, 105 Mass. 477 (7 Am. Rep. 548); Gregor v. Cady, 82 Me. 131 (19 Atl. 108, 17 Am. St. Rep. 466).

Plaintiff had agreed with defendants that they should' put in a sprinkler system. They could adopt whatever system they chose, and could make whatever contract they chose for putting it in. There was no contractual relation between plaintiff and the General Fire Extinguisher Company. We think that in reason, as well as-authority, the rule of law is that the plaintiff can hold defendants for the negligence resulting in damage to it, and that the defendants have their remedy against the extinguisher company.

Counsel liken the case to that of one buying an appliance of a reputable dealer, which, through its negligent, construction or make, works damage to a third person, and invoke the rule that a vendor or purchaser is not liable for latent defects in machinery; citing McKinnon Manfg. Co. v. Alpena Fish Co., 102 Mich. 221 (60 N. W. 472), Walden v. Finch, 70 Pa. St. 460, and other cases. We think this is not a case for the application of that doctrine. There was no defect here in the system or in the.' apparatus. The former was good, and the latter properly constructed. There was no latent defect. The sole difficulty was that the extinguisher company erred in not. *231determining the temperature at which the sprinkler head should be set. Walden v. Finch was a case between bailor and bailee. The bailor had deposited- his property in the warehouse of the bailee. The building fell through improper construction. It was held that the bailee, having done all in his power to erect a safe structure, was not liable for its occult defects. McKinnon Manfg. Co. v. Alpena Fish Co. involved the shaft of an engine, which broke from hidden and unknown defects.

Judgment affirmed.

The other Justices concurred.