165 A. 381 | Pa. | 1933
Argued January 3, 1933. The 1437 Spruce Street Corporation, hereinafter called the owner, having title to a property at the northeast corner of 15th and Spruce Streets, in the City of Philadelphia, caused an apartment house to be erected on it. Plaintiff owns and occupies a residence on the adjoining property to the east. Claiming that it was seriously injured during the construction of the apartment house, and that defendant was responsible therefor, plaintiff brought the present suit. He recovered a verdict, but the court in banc entered judgment for defendant non obstante veredicto, and therefrom the present appeal was taken. The judgment is right. *313
The apartment house was erected under the following circumstances: The owner had its architects prepare plans and specifications for the construction, and then entered into an agreement with defendant, by which the latter, "as agent for the owner in executing the work . . . . . . provided for in the above mentioned plans, specifications and details . . . . . . shall cause the work to be executed in a prompt, efficient and workmanlike manner;" defendant to "furnish without charge other than the [specifically stated gross] compensation herein provided for, its business and purchasing system, constructive skill, experience and organization, and generally its ability to organize and equip the work with experienced men as well as to properly direct the same." It further provided that defendant should, "subject to the approval of the owner and for its account, place all subcontracts and purchase all materials, supplies, etc., required in connection with the work, and shall approve all bills and accounts for same for prompt payment by the owner" — all the payments of every kind required to be made in the course of construction of the apartment house to be paid by the owner. It will be noticed this agreement does not provide for defendant to do any of the actual work of construction, either by itself or through subcontractors; that the real relation between the owner and defendant was not that of owner and contractor, but was that of owner and superintendent, defendant acting, in the matter of the construction, in that capacity only.
The plan thus provided for was carried out. With "the approval of the owner, and for its account," defendant made various subcontracts for specific portions of the work of construction, the aggregate of said contracts embracing all the work needed in the erection of the apartment house. This imposes no liability on defendant: Bachler v. Widmyer,
It follows that if defendant is to be held liable, it must be solely because of its personal wrongful acts: Berry v. Vantries, 12 S. R. 89, 93; Beeson v. Lang,
If, under the facts above set forth, plaintiff was injured by reason of the way any of the subcontractors did their work, plaintiff's remedy would be against them, for they were independent contractors. As said by us in Simonton v. Morton,
What has been said practically disposes of this appeal, and it remains only to apply the principles stated to the concrete contentions of plaintiff. Speaking generally, there are three classes of injuries to plaintiff's property, of which he complains: (1) An injury to the roof by articles falling or being thrown on it in the course of construction of the apartment house; (2) An injury to his property generally because of interference with the means therein provided for carrying off surplus water; and (3) A failure to protect the brick building on plaintiff's *316 property, so that it and the adjoining earth settled, causing injury, especially to the rear building itself. For none of these things, however, was defendant responsible to plaintiff.
As to the first two, since defendant was not to do, and did not in fact do any of the actual work of construction, and all these matters arose out of and in the course of construction, those who did that work must necessarily be responsible for whatever injury occurred. Moreover, this is especially provided for, the contracts between defendant, as agent for the owner, and the subcontractors, specifically providing that "The subcontractor is to be fully responsible and repair and place in first-class condition, at his expense, all damage done to property . . . . . . in the performance of this contract." If it be said that the damage complained of would not have occurred if defendant had properly superintended the work, it need only be said again that, for this neglect, if there was one, defendant is responsible only to the owner. Indeed, the evidence in this case is barren of proof as to who caused those injuries. We are asked to infer that it was done by one or more of the subcontractors, solely by reason of the fact that it occurred while they were working on the apartment house.
On these two questions, plaintiff points to the following provisions of the specifications for the construction of the apartment house, and alleges liability by reason thereof: "The General Contractor [defendant] must lay out the work and be responsible for its correctness. He must watch the progress of the work without notice from any one. . . . . . He must be responsible and make good to the architects' satisfaction all defacements and injuries to neighboring properties done by him or men in his employ, or through his or their negligence, or to any work upon the building not in this contract, if done by him or men in his employ, or through his or their negligence. He must use, provide and make all proper, necessary and sufficient precautions, safeguards and protections *317 against the occurrence or happening of any accidents, injuries, damages or hurt, to any person or property, during the progress of the construction of work contracted for, and he must be responsible for and indemnify and save harmless the owner from the payment of all sums of money by reason of any such accidents, injuries or hurts that may happen or occur through him or men in his employ, or through his or their negligence." Aside front all other considerations, it is so plainly evident that these provisions apply only to the relation between defendant and the owner, that nothing further need be said in regard to them.
The third contention, which is the important one on this appeal, must also be decided against plaintiff. The apartment house was to be built on the entire front of the owner's property, running up to plaintiff's property. His residence also occupied the entire front of his lot, the west wall thereof, extending back for sixty feet, being a party wall — that is, partly built on each property. North of that, plaintiff's building receded four feet, and then continued of that reduced width back to Manning Street. The four feet not built upon constituted plaintiff's side yard. In constructing the apartment house, its west wall for the sixty feet in depth was the existing party wall above referred to, and in relation to it no substantial complaint is made. North of the party wall, however, and east of the party line of the owner was the above mentioned side yard of plaintiff. The plan of the apartment house provided for a curtain wall along that side yard, that is, a wall which came up to the common line of the two properties, but not encroaching on plaintiff's property, as would have been necessary had this part of the wall been a party wall.
In excavating along this rear line, the owner had cast upon it the legal duty of supporting the earth of plaintiff's property in its natural state, but not of protecting any building erected on it. That duty was on plaintiff himself: Cooper v. Altoona Concrete, etc., Co.,
What actually occurred was this: One of the subcontractors agreed that he would "perform all the work . . . . . . [of] excavation, disposal, shoring and sheeting, back-filling and underpinning for the erection and construction" of the apartment house, and would "be fully responsible and repair and place in first-class condition, at his own expense, all damage done to property, streets or sidewalks in the performance of this contract." When the work reached the stage where it became necessary to shore up plaintiff's yard, so that the earth thereof would not cave in while the curtain wall was being built, defendant's superintendent on the job saw plaintiff, and this is what the latter himself says occurred: "Q. Now, was any request made by the defendant to enter your side yard and make use of it at any time? A. There *319 was, after they had started excavating. Mr. Boyne said that he would like to put in sheathing so as to protect the side yard, protect that ground, that side yard, from slipping. I gave him permission to do so. . . . . . Q. What reason did he give for wanting to come upon your lot, and do some work in connection with the apartment house building? A. He said it was necessary to support that side yard, to put in that sheathing, so that they could support it and keep it from falling in." It will be noticed that this refers only to the support of the yard, not the building. Following the permission thus obtained, defendant, as agent for the owner, gave the lines at which the sheathing should be placed, and then plaintiff says "there was sheathing driven in and considerable of the ground taken out for the sheathing to be put in." Plaintiff alleges "that the cause of the settlement of the building [following the construction of the sheathing] was water getting behind the sheet piling and percolating through for a series of weeks and wasting out the earth." Defendant had nothing to do with the actual performance of that work; it was all done by the subcontractor who had the contract above quoted.
It seems to be further contended that because much work was done on plaintiff's property in a vain attempt to satisfy him, this proves a liability to make good all the damage, and, as the building had not been fully repaired, the present suit was properly brought and must be sustained. The incorrectness of this contention is evident as regards anyone, and, as respects plaintiff, is readily made clear. The facts are these: Plaintiff complained of the injury, and the architect for the owner had an interview with him. Following this, the owner directed defendant to give to the subcontractor an order to remedy the cause of the complaint, the cost of so doing to be paid by the owner. This course was pursued, the subcontractor did the work at an expense of some $5,000 and the owner paid the bill. Of course this cannot affect defendant in the slightest degree.
The judgment of the court below is affirmed. *320