299 P. 720 | Cal. | 1931
This is an action for damages for injuries to property. In 1927 defendant Marian Realty Company commenced to construct a concrete building near plaintiffs' building. Defendant Golden Gate Iron Works contracted to place the structural steel and defendant Adam Arras Company contracted to do all the concrete work. The steel contractor used a donkey-engine to hoist the steel. The concrete contractor piled sand and cement near the building. Plaintiffs brought an action against the Marian Realty Company and the two contractors, alleging that smoke from the donkey-engine and sand and cement from uncovered piles were carried by the wind to his building, *624 discoloring it, and necessitating repainting of the same at the conclusion of the building operations. The first cause of action in the complaint was framed on the theory of negligence; the second alleged that the acts of defendants constituted a nuisance.
Upon the trial a nonsuit was granted as to the two contractors, but judgment was given for plaintiffs against the defendant Marian Realty Company in the sum of $278.
[1] The first ground of said defendant's appeal is that the trial court was in error in holding it liable for the acts of independent contractors. There is, of course, no question but that ordinarily no liability attaches to an owner for the acts of an independent contractor. (See Green v. Soule,
[2] The next ground of appeal is that the granting of the nonsuit in favor of the contractors should necessarily have compelled the same result as to the Marian Realty Company. It is argued that this action of the trial court must have been based upon a finding either of no negligence, or of no damage. We are not presented directly with the question whether the nonsuit should have been *625 granted, since defendants do not base their appeal on that phase of the judgment; but whether it was correct or not is immaterial here. This is not a case of findings which are fatally inconsistent, as would be the case if, e.g., in an action against a principal for the negligence of an agent, the former were held liable and the latter absolved. The liability of defendant Marian Realty Company, as already pointed out, may arise from its own acts and omissions, and is not necessarily based upon the acts or omissions of the contractors.
The important problem in this case relates to the nature of the liability, if any, for the damage suffered. The trial court found that the defendant Marian Realty Company negligently performed the work of constructing the building and so caused damage to the plaintiffs. The evidence hardly supports such a finding. The record shows that the acts complained of were performed by the contractors, over whom the Marian Realty Company exercised no authoritative control; and for the negligence of such independent contractors the company is not liable. (Green v.Soule, supra; Messina v. Terhune, (N.J.)
The judgment is affirmed.
Waste, C.J., Shenk, J., Curtis, J., Richards, J., and Seawell, J., concurred.
Rehearing denied.