Wertheimer v. Saunders
70 N.W. 824
Wis.
1897
Check Treatment
PiNney, J.

There was no stipulation in the lease from the defendants to the plaintiff requiring them to make repairs upon the building, or to put a new roof thereon; and any promise to do so, founded merely on the relation of the parties, and not one of the conditions of the lease, would be without consideration, and for that reason would create no liability. But it is very well settled that, although a gratuitous contract of that kind would not be binding, the lessors (defendants), having seen fit to treat it as binding, or to repair the roof, or to put a new one on the building, and having *578actually entered upon its fulfillment, either by themselves or contractors under them, they would thereby come under some degree of liability to the plaintiff as to the manner of its performance.

It is well settled that for an injury occasioned by want of due care and skill in doing what one has promised to do an action may be maintained against him in favor of the party relying on such promise, and injured by the breach of it, although there was no consideration for the promise, and it was at the tenant’s solicitation. Gill v. Middleton, 105 Mass. 477. In Sulzbacher v. Dickie, 51 How. Pr. 500, where the authorities were carefully considered, it was held that, where the owner of the building enters into a contract with a builder to put a new roof on it at a stipulated price, and during the time of putting it on, and after the removal of the old one, and while the building was in an exposed condition, the tenant or subtenant is damaged by rain, the owner is answerable for the damage, and not the contractor that the landlord or owner, in the exercise of the right to put on a new roof, is- bound to see that all reasonable care and skill is exercised in the removal of the old one and in the putting on of the new one to prevent injury by the elements to those who are in the occupation of the house; and where the act undertaken, from its very character, is either a nuisance, or one dangerous to others, the one undertaking it is not released from responsibility to any one injured thereby, although he has entered into a contract with some one to perform it, and the injuries occurred through the negligence of the latter. Lasker Real Estate Asso. v. Hatcher (Tex. Civ. App.), 28 S. W. Rep. 404; Glickauf v. Maurer, 75 Ill. 289.

Had the defendants personally attended to the putting on of the new roof, and been guilty, in doing so, of the negligence charged as the cause of the plaintiff’s injury,, we think there is no doubt but that they would be liable. *579The evidence shows that the work of putting on the roof, in the present instance, ivas undertaken in consequence of the solicitation and request of the plaintiff, through his agent, Ayers, and by entering upon the performance of the work, though through the medium of a contract with third parties, the defendants assumed and owed the plaintiff a particular duty in the premises, namely, that reasonable care and caution should be used in conducting the work of taking off the old roof and putting on the new one, to avoid doing any injury to the property of the plaintiff. This was an absolute duty imposed by law, upon the particular facts, and was just as binding as if the defendants had stipulated in the lease for'its performance. The work to be done was one attended with risk and danger to the property of the tenant by reason of its exposure to the elements. That one upon whom the law devolves a duty cannot shift it over upon another, so as to exonerate himself from the consequences of its nonperformance, is very clear. Shearm. & Eedf. Neg. §§ 174-176-; Wood, Master & S. § 316; Whart. Neg. § 185; Promer v. M., L. S. & W. R. Co. 90 Wis. 220-223; Cadden v. Am. Steel Barge Co. 88 Wis. 418, 419. In Railroad Co. v. Morey, 47 Ohio St. 207, 214, the court held it “ clear that the law devolves upon every one about to cause something to be done which will probably be injurious to third persons the duty of providing that reasonable care shall be taken to obviate those probable consequences.” And in Hughes v. Railway Co. 39 Ohio St. 476, it was stated that “The employer cannot relieve himself from liability by contracting with others for. the performance of work, when the necessary or probable effect of the- performance of the work would injure third persons.”

The contention is that the' defendants have discharged themselves from liability by turning the wbrk over to third parties, independent contractors, for whose negligence in its ' performance they are not responsible. An examination of *580adjudicated cases shows that there are exceptions to the general doctrine relied on by the defendants, and many such cases are cited, and the grounds of exception to the general rule are stated in the note to Hawver v. Whalen, 14 L. R. A. 828, as where a city is charged with the duty of keeping its streets in repair it is answerable for an improperly guarded excavation made by a contractor in building a sewer or the like. Storrs v. Utica, 17 N. Y. 104; Robbins v. Chicago, 4 Wall. 657-679; Water Co. v. Ware, 16 Wall. 567-576. If an injury might be anticipated as a direct or probable consequence of the performance of work contracted for, unless reasonable care be used, the negligence of the contractor or his employees will be chargeable to the person for whom the work is done, and the latter will be held liable accordingly. Woodman v. Metropolitan R. Co. 149 Mass. 335-839. In such case one cannot, by employing an independent contractor, relieve himself from liability for a failure to exercise reasonable care to discharge a duty incumbent upon himself, but he is bound to see-to it that such care is used, although such contractor stipulates with him to take the risk and responsibility. So, in the present case, the defendants cannot claim immunity from liability by reason of having delegated or turned over to independent contractors for the work the performance of the duty they themselves owed to the plaintiff. Ever since the case of Quarman v. Burnett, 6 Mees. & W. 499, it has been considered that a person causing something to be done, the doing of which casts on him a duty, cannot escape from the responsibility attaching to him of seeing that duty performed, by delegating it to a contractor. lie cannot thereby relieve himself from liability to those injured by the failure of the contractor to perform it. In Bower v. Peate, 1 Q. B. Div. 321-326, it was laid down that “ A man who orders work to be executed, from which, in the natural course of things, injurious consequences must be expected to arise un*581less means are adopted by which they may be prevented, is bound to see to the doing of that which is necessary to prevent the mischief, and cannot relieve himself of his responsibility by employing some one else — whether it be the contractor employed to do the work from which the danger arises, or some independent person — to do what is necessary to prevent the act he has ordered to be done from becoming wrongful. There is an obvious difference between committing work to a contractor to be executed, from which, if properly done, no injurious consequences can arise, and handing over to him work to be done, from which mischievous consequences will arise, unless preventive measures are adopted. While it may be just to hold the party authorizing the work, in the former case, exempt from liability for injury resulting from negligence which he had no reason to anticipate, there is, on the other hand, good ground for holding him liable for an injury caused by an act certain to be attended with injurious consequences, if such consequences are not in fact prevented, no matter through whose fault the omission to take the necessary measures for preven tion may arise.” Here the removal of the roof was by the direction and authority of the defendants, and at the request of the plaintiff, and the injury resulted from what the defendants procured their contractors, under them, to do, and the alleged negligent manner of their doing it. It is manifest that the removal of the old roof, in order to put on a new one, necessarily exposed the property of the tenant, the plaintiff, to injury from the elements; and the duty, as already stated, was cast on the defendants to see that reasonable care was taken to avert such result. The argument of counsel for the defendants wholly ignores the existence of such duty on the part of the defendants, and its bearing, and erroneously assumes, as we think, that the action is to charge the defendants solely on the ground of the collateral negligence of the contractors. The doctrine of Bower v. Peute, supra, was ap*582proved in Dalton v. Angus, 6 App. Cas. 829, and Lord Watsok stated the rule to be that “When an employer contracts for the performance of work which, properly conducted, can occasion no risk to his neighbor’s house, which he is under obligation to support, he is not liable for damages arising from the negligence of the contractor. But in cases where the work is necessarily attended with rish he cannot free himself from the liability by binding the contractor to take effectual precautions. He is bound, as in a question with the party injured, to see that the contract is performed; and is, therefore, liable, as well as the contractor, to repair any damage which may be done.” In Pickard v. Smith, 10 C. B. (N. S.), 470, the precise point in this case was stated and considered, and it was said that “If an independent contractor is employed to do a lawful act, and in the course of the work he or his servants commit some casual act of wrong or negligence, the employer is not answerable. That rule is, however, inapplicable to cases in which . . . the contractor is intrusted with the performance of a duty incumbent upon his employer, and neglects its fulfillment, whereby an injury is occasioned.” And this is the case now before us. The case of Gray v. Pullen, 5 Best & S. 970, is to the same effect, and is an authority, as stated in Dower v. Peate, that “ it can make no difference, in point of principle, whether the obligation was imposed by statute or existed at law,; and that, where work is being executed from which danger may arise to others, and it thereby becomes incumbent on the party doing or ordering it to be done to take measures to prevent damage resulting to others, he cannot divest himself of liability by transferring the duty 'to a contractor.” 1 Q. B. Div. 327, 328. And this is in accord with Storrs v. Utica, 17 N. Y. 104; Robbins v. Chicago, 4 Wall. 657-679, and Chicago City v. Robbins, 2 Black, 418.

Inasmuch, therefore, as the defendants, as landlords, owed *583the plaintiff, their tenant, a special duty, growing out of their relations as such, to use reasonable care to protect the plaintiff’s property in the building from injury by the elements while repairing the roof or putting on a new one, as they had undertaken or assumed to do at his request, they became liable for the performance of such work in an insufficient or negligent manner, although the work was so performed for them by independent contractors. None of the cases cited by the defendants’ counsel appear to have been, cases where the landlord, or person contracting for doing the work, owed a special duty to the party injured that it should be done with reasonable care to avoid such injury. We think, therefore, for the reasons stated, that the present case falls within a wTell-recognized exception to the rule invoked on behalf of the defendants. There was sufficient evidence of negligence in the performance of the work causing the injury to re'quire the case to be submitted to the jury. The direction of a verdict for the defendants, therefore, was erroneous.

By the Court.— The judgment of the circuit court is reversed, and the cause remanded for a new trial.