64 Ind. 345 | Ind. | 1878
This Avas an action by the appellee Barbara Curran, as plaintiff, against the appellants, James B. Ryan, Elijah Victor and Stephen KhoAvlton, and her co-appellees, Deloss Root, Jerome B. Root, Frederick Nolke, Frank Smalhvood and Frank Windesheimer, as defendants, in the court below.
In her complaint the appellee Barbara Curran alleged, in substance, that on or about the 1st day of September, 1874, the appellant James B. Ryan Avas the OAvner, and in
To this complaint the appellant James B. Ryan separately answered in two paragraphs, the first being a general denial, and the second setting up affirmative matter.
To the second paragraph of said answer,, the appellee Barbara Curran demurred, 'upon the ground that it did not state facts sufficient to constitute a defence to her action, which demurrer was sustained by the court, and to this decision the appellant Ryan excepted.
The appellants Victor and Rnowlton jointly answered in two paragraphs : first, a general denial; and, second, a special defence. To thé second paragraph of this answer, the appellee Barbara Curran replied by a general denial.
The ' defendants Deloss and Jerome B. Root jointly answered the complaint by a general denial thereof.
The appellants Nolkef Smallwood and Windesheimer jointly answered by a general denial of the complaint.
The issues joined were tried by a jury in the court below at special term, and a verdict was returned for the appellee Barbara Curran, assessing her damages at four thousand dollar's agaixxst the appellaxxts Ryan, Victor and Knowlton, and fixxding for the other defendants, Deloss Root, Jerome B. Root, Nolke, Smallwood- and 'Windesheimer.
In this court the appellants have assigned, as error, the judgment of the court below in general term, affirming the judgment of said court at special term. This alleged error brings before this court the questions which fairly arise under the errors assigned by the appellants in the court below in general term, which errors were as follows :
1. The decision of the court at special term, in sustaining the demurrer of the appellee Barbara Curran to the second paragraph of the separate answer of the appellant James B. Ryan ; and,
2. The -decision of said court at special term, in overruling the motion of the appellant Ryan for a new trial.
The appellant James B. Ryan, in the second paragraph of his separate answer, alleged, in substance, that he admitted he was the owner of the lot of ground described in the complaint, and the fact that the appellee Barbara Cur-ran was injured by falling into the cellar of the building then being erected thereon ; but the appellant Ryan averred that the appellants Victor and Knowlton, skilful, reliable and competent builders, were engaged in the erection of a brick building on said lot, having been contracted with by the appellant Ryan; that the said builders and contractors were to have, and did have and exercise, exclusive control and direction of the digging of the cellar, the erection of the walls therein and around the same, together with the passage-ways into the same, and the erection of the entire
The first question presented for our consideration and decision, by the record of this cause and the error assigned thereon, may be thus stated:
Were the facts alleged in the second paragraph of the separate answer of the appellant James B. Ryan sufficient to constitute a complete defence, in his behalf, to the action of the appellee Barbara Curran ?
It seems very clear to us, that this question must be answered in the afiirmative. We are aware that this conclusion is apparently in conflict with the opinion of this court in the case of Silvers v. Nerdlinger, 30 Ind. 53. In that case it appears from the opinion of the court, that Nerdlinger and another owned a lot in the city of Fort Wayne, on which lot the appellant Silvers had contracted with the appellees to erect for them a building, and to that end they had delivered to him the exclusive possession of said lot. During the erection and before the completion of the building, one Charles Dwelly, in passing over the sidewalk in front of said building, — in which sidewalk an excavation had been made for the construction of the walls and cellar-ways of the building, and had been left in an unguarded condition, — had fallen into the pit, and had been injured thereby. In an action for that purpose, Dwelly had recovered dam
It will be seen, from this statement of the case'cited, that the point in judgment in that case was the right of the owners of the lot to recover from the contractor the damages, which they had been compelled to pay by reason or on account of the alleged negligence of the contractor. This is not, but is widely different from, the question presented for decision by the second paragraph of the separate answer of the appellant Ryan, in the case at bar. The question here presented is, whether or not the appellant Ryan, as the owner of the lot, under the facts stated in the second paragraph of his answer, was liable' in damages to the appellee Barbara Curran, for the injuries received by her in the manner stated in her complaint. The liability of the owner of the lot to the party injured; in such a case, was not the question before the'court in the case of Silvers v. Nerdlinger, supra; but Elliott, J., devoted much of his opinion, in the decision of that case, to the consideration of that question. The opinions of that learned judge on any legal question are entitled to very' high respect ; but his opinion in the case cited, upon the question now under consideration, which was not involved in that case, can not be regarded as an authority decisive of that question.
The contract in writing between the appellant Ryan and his co-appellants, Victor and Knowlton, which was filed with the second paragraph of Ryan’s separate answer, was
Before considering the sufficiency of the facts alleged in the second paragraph of Ryan’s answer, we may properly premise that it is evident from the averments of the complaint, that the appellee Barbara Curran did not ground her alleged cause of action against Ryan solely upon the fact of his ownership of the lot described in her complaint'. The gist of her cause of action, as stated and reiterated in her complaint, was the alleged negligence of Ryan and his codefendants, in covering the area or cellar-way in part, so as apparently to invite travel thereon, and in leaving the residue of the area or cellar-way uncovered and unguarded. It can -not be questioned, as it seems to us, that the party, whoever he may have been, who left that area or cellar-way in the condition described in the complaint, in a public thoroughfare of a large city, was guilty of gross negligence and was liable in damages under the averments of the complaint, • for the injuries sustained by Barbara Curran. But the question for decision under the allegations of the second paragraph of Ryan’s answer, admitted to be true by the demurrer thereto, is this: Can it be said, if the facts alleged are true, that the appellee Barbara Curran received the injuries complained of, by or through the negligence of the appellant James B. Ryan.
If it be true, as alleged in Ryan’s answer, that the appellants Victor and Xnowlton had and exercised exclusive
It seems very clear to us that each and all of these questions must be answered in the negative. The truth is, and it can not be gainsaid, that the averments of the second paragraph of Ryan’s answer constitute a full and complete defence to every fact alleged in the complaint, except the facts of Barbara Curran’s injury and Ryan’s ownership of the lot and building. It need hardly he said that these excepted facts alone would not give Barbara Curran-, any cause of action against the appellant Ryan. The-gravamen of the complaint in this case was the alleged negligence of the defendants, hut the facts alleged in-the second paragraph of Ryan’s answer show very clearly,we
It was alleged, as we have seen, in the second paragraph of Ryan’s answer, that the appellants Victor and Knowlton, “skilful, reliable and competent builders,” had and exercised exclusive control and. direction, under a special contract in writing with the appellant Ryan; over the digging of the cellar, the erection of the walls therein and around the same, together with the passage-ways into the same, and the erection of the entire building to its completion. In such a case it is very clear we think, that the appellants Victor and Knowlton can not be regarded, in any proper sense, as the agents or servants of Ryan, except as to the specific results which they undertook or contracted to produce; and the law is now well settled, that the employer of a builder or contractor, in such a case, is not responsible to third persons for tlie negligence of the builder or contractor, or for the negligence of the latter’s servants, agents or sub-contractors, in the execution of the work. Ryan’s contract with Victor & Knowlton, for the erection of his block of buildings, was a lawful contract, for a lawful purpose. The work contracted for was not a nuisance per se; and the doctrine is now firmly established, that, unless the work is in itself a nuisance, the owner of the real estate, Avho has contracted with “ skilful, reliable and competent builders,” will not be liable to third persons for injuries which result from the negligence of the builders or contractors, or of their servants, agents or sub-contractors, in the execution of the work. Hilliard v. Richardson, 3 Gray, 349 ; Linton v. Smith, 8 Gray, 147; Brackett v. Lubke, 4. Allen, 138; Barry v. City of St. Louis, 17 Mo. 121; Blake v. Ferris, 5 N. Y. 48; Pack v. The Mayor, etc., 8 N. Y. 222; Kelly v. The Mayor, etc., 11 N. Y. 432 ; Painter v. The Mayor, etc., 46 Pa. State, 213; Allen v. Willard, 57 Pa. State, 374; De Forrest
The general proposition to be deduced from the authorities cited is, “ that one person is not liable for the acts or negligence of another, unless the relation of master and servant exists between them; and when an injury is done by a party exercising an independent employment, the person employing him is not liable.”
We are clearly of the opinion, that the matters pleaded by the appellant James B. Ryan, in the second paragraph of his separate answer, were sufficient to constitute a defence to the cause of action stated by the appellee Barbara Curran, in her complaint; and therefore we hold, that the court at special term, erred in sustaining said appellee’s demurrer to said second paragraph of answer.
The conclusion we have reached, in regard to the' sufficiency of the second paragraph of the separate answer of Ryan, renders it unnecessary for us, so far as he is concerned, v to consider the second error assigned by him in the court below, in general term. In this court the appellants Victor and Khowlton appear to have joined with the appellant Ryan in the assignment of errors; but they failed to assign any errors in the court below in general term, and therefore their assignment of errors here presents no question for decision in their behalf. Wesley v. Milford, 41 Ind. 413, and The State, ex rel., etc., v. The Terre Haute, etc., R. R. Co., ante, p. 297.
In so far as the decision of this cause is in conflict with the case of Silvers v. Nerdlinger, supra, the latter case is overruled.
The judgment is affirmed as to the appellants Victor and Rnowlton; but as to the 'appellant James B. Ryan the judgment is reversed, at the costs of the appellees,
Petition for a rehearing overruled.