Opinion
No. 18068.
1947-05-10
MERCER v. OHIO FUEL GAS CO. et al.
H. H. Crabbe, of London, for plaintiff. Vorys, Sater, Seymour & Pease, of Columbus, and Frank J. Murray, of London, for R. H. Smith.
Action by Elza Mercer against the Ohio Fuel Gas Company, a corporation, and R. H. Smith, to recover for the poisoning of plaintiff's hogs, who ate enamel used by R. H. Smith in re-laying pipeline for the Ohio Fuel Gas Company, a corporation.
Verdict was directed in favor of the Ohio Fuel Gas Company.
Judgment affirmed by the Court of Appeals, 79 N.E.2d 685.H. H. Crabbe, of London, for plaintiff. Vorys, Sater, Seymour & Pease, of Columbus, and Frank J. Murray, of London, for R. H. Smith.
Wiles & Doucher, of Columbus, and Forrest E. Sidener, Jr., of London, for Ohio Fuel Gas Co.
RANKIN, Judge.
This cause was hertofore submitted upon the motion of the plaintiff for a new trial. Plaintiff's cause of action is founded on tort. He bases his right to recover upon the ground that the two defendants were jointly negligent in placing a quantity of paint or enamel where his hogs had access thereto; that said enamel contained a poison; and that his hogs ate said enamel and were poisoned thereby.
Plaintiff offered in evidence the contract entered into between the defendants whereby the Gas Company employed the defendant, R. H. Smith, to take up an old and re-lay a new pipe line through certain lands occupied by the plaintiff as lessee. The contract provided for ‘coating new pipe with enamel, joining and laying of new pipe’ etc. The Gas Company was to and did deliver the enamel on the job in metal drums. At this point in the operations the Gas Company surrendered to Smith all control over the enamel and entrusted to him all of the details of the work.
This enamel had to be heated before it could be applied to the pipe. In order to do this Smith's men chopped the enamel from the drums and put the pieces into a large kettle. The negligence complained of herein consisted in these men leaving some of the pieces of enamel on the ground where plaintiff's hogs had access thereto.
It is claimed that the court erred in directing a verdict in favor of the Gas Company.
As pointed out, Smith was to furnish the workmen and appliances and to use his own means and methods of doing the work called for in the contract. The Gas Company retained no control in respect to the details of the work or the manner in which it should be done. Therefore, the relationship between the Company and Smith was clearly that of employer and independent contractor.
The general rule which prevails in this state and elsewhere is to the effect that where one lets work to be done by another, reserving no control over the performance of the work, he is not liable to third persons for injuries resulting from the negligence of the contractor or his workmen. To this rule there are certain exceptions. 21 O.Jur. 641 et seq.
One of the clearest and most comprehensive rules to be found on this subject is that given in 39 C.J., 1324, as follows: ‘Although the rule is stated in the decisions in many different ways, and although there is a considerable conflict of authority as to whether a particular state of facts brings the case within the general rule relieving the contractee from liability, or causes it to fall within one of the exceptions which render him liable, the general rule deducible from the decisions and the one now universally recognized is that, where the relation of an independent contract exists, and due diligence has been exercised in selecting a competent contractor, and the thing contracted to be done is not in itself a nuisance, nor will necessarily result in a nuisance if proper precautionary measures are used, and an injury to a third person results, not from the fact that the work is done, but from the wrongful or negligent manner of doing it by a contractor or his servants, the contractee is not liable therefor.’
Counsel for plaintiff cite but a single authority to fix liability on the Gas Company, viz. 21 O.Jur. page 650. He quotes the following therefrom: ‘The rule that an employer's liability for injuries occasioned by the act or negligence of an independent contractor or his employees, is limited to those injuries which are collateral to the work to be performed, and which arise from the negligence or wrongful act of the contractor, or his servants, has no application where the work to be performed is necessarily dangerous, or an obligation rests upon the employer to keep the work in a safe condition.’
‘The rule’ which the author of the above evidently had in mind is of utmost importance-in fact it is decisive of the question before us. However, the author of the above quoted matter was completely confused and utterly mistaken as to the meaning and effect of ‘the rule’ concerning which he was writing. As a result he therein erroneously fixed liability on the employer under a state of facts which entirely exonerates the employer from liability. What the author evidently endeavored to do was to follow what the court had said in the case of Circleville v. Neuding, 41 Ohio St. 465, at page 469. In fact most of the language was copied verbatim from that case, but in transposing and changing some of the language the author entirely changed the meaning of the rule. The rule announced in that case is as follows: ‘The relation between the city and Brandt was clearly that of employer and independent contractor, and the rule is generally that for injuries occurring in the progress of work carried on by parties in that relation, the contractor alone is liable. But that liability is limited to those injuries which are collateral to the work to be performed, and which arise from the negligence or wrongful act of the contractor or his agents or servants. Where, however, the work to be performed is necessarily dangerous, or the obligation rests upon the employer to keep the subject of the work in a safe condition the rule has no application.’ (Emphasis added.)
It is readily apparent therefrom that it is the contractor alone who is liable for ‘those injuries which are collateral to the work to be performed, and which arise from the negligence or wrongful act of the contractor or his agents or servants,’ and that the employer is not liable for such collateral injuries.
The rule under discussion was laid down in more simple language in an early United States case, as follows: ‘Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable; but where the obstruction or defect which occasioned the injury results directly from the acts which the contractor agrees and is authorized to do, the person who employs the contractor and authorizes him to do those acts is equally liable to the injured party.’ Robbins v. Chicago, 4 Wall. 657, 18 L.Ed. 427.
That case was approved and followed in Ohio South Railroad Co. v. Morey, 47 Ohio St. 207, 24 N.E. 269,7 L.R.A. 701, and Circleville v. Neuding, supra.
Upon this question it is said in the Restatement of the Law of Torts, Section 426:
‘a. Collateral negligence. The negligence of a contractor in the course of performing work entrusted to him by his employer, which does not make the result fall short of that which it would be the employer's duty to attain, had he done the work himself, is collateral negligence.
‘Illustration:
‘1. A employs B, a competent contractor, to excavate a cellar on land immediately adjoining a public highway. The contract requires B to provide the fence necessary to prevent pedestrians from falling into the excavation. A is liable to C, a pedestrian, who falls into the excavation because the fence as erected by B is flimsy or because B has not erected the fence as his contract required. A is not liable to D, a pedestrian hurt by the carelessness of B's workmen in handling the timbers while they are erecting the fence or by the careless handling of tools while so doing.’
As applied here this means that the Gas Company is not liable to the plaintiff even if Smith's men were negligent in handling the enamel.
In the Annotation found in 21 A.L.R., at page 1230, we find the following excellent quotation from an English case: ‘The distinction appears to me to be that, when work is being done under a contract, if an accident happens, and an injury is caused by negligence in a matter entirely collateral to the contract, the liability turns on the question whether the relation of master and servant exists. But when the thing contracted to be done causes the mischief, and the injury can only be said to arise from the authority of the employer, because the thing contracted to be done is imperfectly performed, there the employer must be taken to have authorized the act, and is responsible for it.’ Concerning the above the author says on page 1230: ‘The doctrine thus laid down has been adopted by all the American courts.’
The liability of the employer was denied in a case where vehicles came into collision with a mortar box left on the roadway. In Green v. Soule, 145 Cal. 96, 78 P. 337, in which the court pointed out that there was nothing in the contract which contemplated or required that the person doing the plastering should place his materials on the street or sidewalk, and therefore it could not be contended that the contract itself was for the creation of an obstruction in the street which would constitute a nuisance.
In Johnston v. Seattle, etc., 85 Wash. 551, 148 P. 900, 902, where a company which had been given the contract for the construction of a building sublet the excavation work to an independent contractor, and a taxicab came into collision with a piece of timber used as a drag, for the purpose of holding back, on a steep grade, a wagon in which earth taken from the excavation made for the foundation of the new building was being removed by a servant of the independent contractor, the liability of the principal contractor was denied. The Court said: ‘The act of placing the drag in the street did not relate to the act of performance of the work contracted for, but it did relate to the manner of its performance. The work contracted for was not inherently or intrinsically dangerous, and was not such as would necessarily or probably result in injuries to third persons, unless measures were adopted by which such consequences could be avoided.’
In Gleason v. Salt Lake City, 1937, 94 Utah 1, 74 P.2d 1225, the court pointed out that the proprietors of the store did not stipulate the doing of the work in the manner which caused the injuries complained of.
‘The distinction is well established between the cases in which, when work is being done under a contract, an injury is caused by negligence in a matter collateral to the contract, and those in which the thing contracted to be done causes the mischief. In the former class of cases the employer is not liable for the injury, but in the latter he is.’ Bonaparte v. Wiseman, 89 Md. 12, 42 A. 918, 919, 44 L.R.A., 482;Hanrahan v. Baltimore, 114 Md. 517, 80 A. 312;Deford v. State, 30 Md. 179.
‘If the work to be done by the contractor cannot be done without danger or injury to third parties, if its very nature and existence are such as to cause or produce danger or injury, the owner, master, or contractor is liable as if he performs it himself.’ Southern R. Co., v. Lewis, 165 Ala. 555, 51 So. 746, 748,138 Am.St.Rep. 77.
See also Annotations in 21 A.L.R., pp. 1230 et seq., and 115 A.L.R. 962 et seq.
‘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 injury caused by an act certain to be attended with injurious consequences, if such consequences are not in fact prevented, no matter through whose default the omission to take the necessary measures for such prevention arise.’ Cochburn, Ch. J., in Bower v. Peate L.R. 1 Q.B.Div. (Eng.) 321.
‘That there is such a risk of injury to pedestrians from the negligence or want of skill of workmen engaged in painting a building abutting thereon, as necessarily to involve an appreciable danger to them, does not render the occupant of the building who employs an independent contractor to do the painting liable for an injury to a passer-by through such negligence.’ Davis v. Whiting, 201 Mass. 91, 87 N.E. 199, 202, 18 A.L.R. 782. In that case the Supreme Court held that there was ‘no evidenceto support’ a verdict against the employer.
‘The owner of a building in process of construction by an independent contractor is not liable for injury to a pedestrian on the adjoining street by a hot rivet which falls when thrown from one workman to another as a method of doing the work, where a protective cover had been placed over the sidewalk, since the workman's act was not a necessary detail of the work so as to render it inherently dnagerous and charge the owner with liability.’ Smith v. Bank of Commerce, 135 Tenn. 398, 186 S.W. 465, 468, 18 A.L.R. 788. In the opinion of that case the court say: ‘It is urged that the rivets should not have been thrown and caught in the manner shown; that they were liable to be missed in catching and fall into the street. Yet plaintiff has failed to prove that a single rivet had ever previously fallen into the street, or in such a manner as would likely endanger one using the street. How could the owner be held to have anticipated what had never happened before? The negligence complained of was but a mere detail of the work that could not have been foreseen or forestalled by the owner. It did not necessarily follow the execution of the work contracted for. It was not a necessary detail of the work.’
Another important point decided in that case, a point that has been raised in the instant case, was that: ‘The taking of a bond by the building owner from one contracting for its construction, to protect him from liability for injuries to strangers during the progress of the work, is not sufficient to charge the owner with liability for such injuries on the ground that he knew that the work was inherently dangerous.’ See also Central Coal & Iron Co. v. Grider, 115 Ky. 745, 74 S.W. 1058,65 L.R.A. 455, 506;French v. Vix, 143 N.Y. 90, 37 N.E. 612;Wolf v. American Tract Society, 25 App.Div. 98, 49 N.Y.S. 236;Salliotte v. King Bridge Co., 122 F. 378, 58 C.C.A. 466, 65 L.R.A. 620; and other cases cited in Note 1, 18 A.L.R. 820.
The following is taken from the Restatement of the Law of Torts, Section 427:
‘One who employs an independent contractor to do work which is inherently dangerous to others is subject to liability for bodily harm caused to them by the contractor's failure to exercise reasonable care to prevent harm resulting from the dangerous character of the work.
‘The usual situations in which the liability stated in this Section is imposed are those in which the work in hand involves the use of instrumentalities, such as fire or high explosives, which require constant attention and skillful management in order that they may not be injurious to others or those in which the work itself, like the demolition of a high chimney, is incapable of being safely done unless the persons who do it are highly skilled and act with the utmost attention and care. The liability stated in this Section * * * does not extend to harm caused by negligence in a particular detail of the work which in itself is not inherently dangerous.’
None of the work which Smith agreed to do under the contract in the instant case was ‘necessarily dangerous' or ‘inherently dangerous.’ If it be granted that Smith's men were in any respect negligent, still the Gas Company cannot be held liable since the damage, if any, suffered by the plaintiff did not result directly from any act of commission or omission which the Gas Company employed Smith to perform.
Counsel for plaintiff assert that, ‘The court would not permit the veterinarians to testify relative to the disease known as coal tar pitch poisoning.’ The record will show that there is no foundation for this claim. It is true that the court did sustain objections to two questions like the following: ‘Q. Are you familiar with the disease in hogs known as coal tar pitch poisoning, sometimes called clay pigeon poisoning?’
That was a very objectionable question. It was asked by counsel for plaintiff of one of plaintiff's own witnesses. That witness was the veterinarian called by plaintiff to see his sick hogs. He had posted one of the hogs. He had repeatedly stated that he did not know the cause of the condition of the hogs. He had had many opportunitiesto testify about ‘poison’ and ‘poisoning’ but he gave no such answers. In this leading question counsel for plaintiff, for the very first time, brought into the evidence, or sought to do so, the question of poisoning. His question assumed a fact that had not been established.
The motion for a new trial will be overruled. Same ruling with respect to any other motions filed since the trial.