Opinion
40625.
DECIDED MAY 6, 1964. REHEARING DENIED MAY 18, 1964.
Action for damages. Whitfield Superior Court. Before Judge Davis.
Greene, Neely, Buckley DeRieux, McCamy, Minor, Vining Phillips, John Minor, III, for plaintiff in error.
Pittman Kinney, H. E. Kinney, Goins, Gammon, Baker Robinson, Mitchell Mitchell, D. W. Mitchell, contra.
1. "In determining whether an independent contractor is to be held liable for damages resulting from the work in connection with which he has been employed, and especially from acts of omission, it is usually necessary to look for guidance to the question whether the injury resulted from the improper plans or directions by which his employment was defined, or from the improper execution of work properly planned. In such cases, if it appears that the contractor has followed the plans and directions of his employer and injury has resulted, the employer, and not the contractor, is to be held liable. For unskilful or negligent execution of the work the contractor (and usually not the employer) is liable." Bell Son v. Kidd Roberts, 5 Ga. App. 518, 520 ( 63 S.E. 607).
2. In an action where exceptions specified by Code § 105-502 to Code § 105-501 are relied upon it is error to instruct the jury on any exception not authorized by the facts in the case.
3. It is not error to fail to charge without request on an issue not raised by both the pleadings and evidence.
DECIDED MAY 6, 1964 — REHEARING DENIED MAY 18, 1964.
Noxon Rug Mills, Inc. sued Edgar L. Smith d/b/a Smith Construction Company, and David L. Thomason and Thomas F. Hackney d/b/a Thomason Hackney to recover damages arising from the alleged concurring negligence of the defendants. The petition, as finally amended, alleged as to material parts: "(3) Plaintiff is a corporation and at the time of the damages herein sued for, it rented and occupied a building located on the west side of Fredrick Street in the City of Dalton, Whitfield County, Georgia. (4) The defendant, Edgar L. Smith, d/b/a Smith Construction Company was, and is a building contractor, and was a building contractor on April 9, 1961. (5) At said time the said Edgar L. Smith was engaged in erecting a building immediately north of the building then occupied by the plaintiff and used by the plaintiff in the manufacture, storage, and processing of rugs and carpeting. (6) At the north end of the building plaintiff rented there was a door approximately 10 feet 8 inches in width and 10 feet high. Immediately north of said door was a concrete loading ramp which sloped downward toward the building rented by the plaintiff. The north side of said ramp extended northward for approximately 8 feet and the north portion of said ramp was approximately 2 feet high, while the south portion was about 6 to 8 inches above ground level. (7) The said Edgar L. Smith was constructing a building north of the building occupied by the plaintiff and at said time was engaged in filling said area north of the building occupied by the plaintiff with dirt and other matter so as to provide a foundation and a floor area for said building under construction. (8) The concrete ramp sloping toward the door on said building was covered with dirt to a height of approximately 2 to 2 and one-half feet near the north edge of the building occupied by the plaintiff. Said dirt was piled against the closed door on the north side of the building. (9) The said Edgar L. Smith, d/b/a Smith Construction Company, hired the defendants, David L. Thomason and Thomas F. Hackney, d/b/a Thomason Hackney, to haul and place fill dirt and materials and compact the same within the area where the building was to be built immediately north of and adjacent to the door leading to the north portion of the building occupied by the plant. Said dirt was hauled, spread and compacted by the said David L. Thomason and Thomas P. Hackney, d/b/a Thomason Hackney, under the general supervision thereof of Edgar L. Smith, d/b/a Smith Construction Company and the said accident hereinafter described occurred in the course of and as the direct result of such operations and of the other facts as alleged in this petition. (10) The door opening on the north side of the building occupied by the plaintiff was about 6 to 8 inches above the ground area north of said building before any filling was done. (11) The defendants, Thomason Hackney, hauled a large number of loads of dirt and fill material, the exact number of loads being unknown to the plaintiff but well known to the defendants and piled part of the same partly against said door and in the area north of said door opening and to a height of approximately 2 and one-half feet higher than the bottom of the north door opening leading into the plaintiff's building. (12) The said David L. Thomason and Thomas F. Hackney, d/b/a Thomason Hackney, piled the dirt and fill material against the said door opening and over said ramp and against the door to a height of approximately 2 and one-half feet. The said David L. Thomason and Thomas F. Hackney, d/b/a Thomason Hackney, then under the direction and supervision of the defendant Edgar L. Smith, used bulldozers and other grading and packing equipment and rolled and compacted said dirt in the area north of said building occupied by the plaintiff and left the same dammed against the door 8 to 10 inches higher than the dirt was about 2 to 3 feet north of said door, so that there was a gradual slope of said dirt upwards towards said door. Said dirt completely covered the ramp sloping upwards northward from the door opening. Said dirt sloping upwards toward the door was intentionally placed and packed by defendants so as to serve as a dam or barrier against ordinary rainfall and the flowage and drainage of water north of the building occupied by plaintiff into the said building. The defendant, Edgar L. Smith, d/b/a Smith Construction Company, while generally supervising the work of the other defendants, did not retain the right to direct or control the time and manner of executing the work by the defendants, Thomason Hackney, nor did the defendant Smith, interfere with and assume control of the work done by Thomason Hackney so as to create the relation of master and servant. (13) Both Edgar L. Smith and David L. Thomason and Thomas F. Hackney, d/b/a Thomason Hackney, were concurrently negligent in that they failed to cover the area next to said door opening and adjacent to said dirt with either tin or tar paper flashing such as would have prevented the dirt dam next to said building from breaking and water running into said building. The defendants were also negligent in that they failed to provide a proper drainage for said water so that in a heavy rain a large portion of water accumulated and was dammed up in the area immediately north of said door opening heretofore referred to. Defendants were also negligent in that they failed to anticipate that the dam of dirt piled against said door would accidentally break in a heavy and sudden rainfall and allow water to flow in and around the cracks around said door. (14) On April 9, 1961, which was on a Sunday, the plaintiff's plant was closed and no one was working in said plant. The door on the north side was closed, but there was a crack under said door and a crack on both sides from one-half to one inch wide. On said date there was a sudden heavy rainfall and the dirt piled against the door hereinbefore referred to caused the water to be dammed and prevented the flow of water to the street and away from said door and due to the water backing up immediately north of said earthen dam adjacent to the building a large amount of water accumulated. (15) Plaintiff further shows that due to the large accumulation of water and the heavy rainfall the said dam and high area of dirt adjacent to said door suddenly and accidentally broke and a large quantity of water suddenly and accidentally ran against, down and around said door, and entered the building occupied by the plaintiff. (16) Plaintiff further shows that a large quantity of finished carpeting in rolls were stored south of said ramp and several inches of water ran down said ramp and under and around the door and against and into said carpeting. (17) Plaintiff further shows that it had a large amount of carpeting on the concrete floor lying south of said door opening hereinbefore referred to. 6,153.87 square yards of carpeting was severely damaged by said water, became wet and soaked, and said carpeting became waterlogged, and a large portion of it became worthless and totally unsalvageable. (18) The sole and proximate cause of the damages sustained by the plaintiff was the concurring negligence of the defendants in negligently placing said dirt against said north door opening so as to allow the water to become dammed and in failing to cover said door and door opening with flashing or with tar paper so as to prevent water from accidentally and suddenly flowing into said building and in failing to anticipate that in the event of rain that water might accidentally break through said earth dam piled against said door opening and door and run into said building occupied by the plaintiff. Either one or both of the defendants should have in the exercise of ordinary care, have anticipated that the amount of rainfall which actually fell would have been likely to fall in that vicinity; either one or both of the defendants, in the exercise of ordinary care, should have anticipated that sufficient rainfall would actually accumulate in the area north of said ramp heretofore described, if there was no means for it to drain away, to overflow at this point and wash down said ramp, as there was nothing behind this dirt to prevent its breakage and water flowing into said building and onto plaintiff's merchandise. Either or both of the defendants should have known, or in the exercise of ordinary care should have known, that the dirt was piled so negligently that the water accumulating north of said ramp had no way to flow from said dirt and that the weakest point in said pile of earth was at the point adjacent to and immediately north of said ramp leading into plaintiff's building. (19) Plaintiff shows that the loss was discovered on the morning following the accident and as soon as the loss and damage was discovered it notified the defendants and they immediately came over and dug a ditch or trench adjacent to plaintiff's building to allow said water to run in an easterly direction and prevent it from entering said building. They also installed a flashing of tar paper against the door to prevent further rain and water from entering the building and sealed the opening leading into the building and sealed the openings around the edges of the door leading into the building. (20) Plaintiff alleges that if either of the defendants had provided proper drainage and proper flashing or a covering against the openings around said door said loss would not have occurred and the water would not have entered said building accidentally. (21) Plaintiff further alleges that while said dirt was being piled against said building and the north door opening that it warned defendant Smith that water might accidentally enter said building through the cracks around said door. (22) Plaintiff did everything possible to reduce its damages on discovery of the damages. (23) The damages plaintiff has sustained were caused by an accident and arose out of the negligence of the two defendants as hereinbefore alleged."
The defendant Smith, in answering the petition, admitted the contract and after denying his own negligence alleged that the defendants Thomason and Hackney were independent contractors and that he was not responsible for their negligence.
The defendants Thomason and Hackney admitted that they were hired to fill and compress the dirt but alleged that "when they were employed by the defendant Edgar L. Smith, they directed their employees to report to Edgar L. Smith, or his foreman, for instructions concerning the work to be done. Defendants further show that their employees followed exactly the instructions and directions given to them by the defendant Smith and his foreman and did no other work other than the work specifically pointed out to them by Smith or his foreman. These defendants further show that they did not instruct, direct or supervise in any way the work of their employees on this particular job but the work done by the defendants' employees was directly under the specific supervision and control of defendant Smith and his foreman."
On the trial the jury returned a verdict for the plaintiff and against the defendant Smith thereby exonerating the defendants Thomason and Hackney. Smith's motion for new trial, as amended, and for a judgment non obstante veredicto were overruled and he assigns error.
The defendant Smith contends in support of the general grounds of his motion for new trial, as well as in support of his motion for a judgment non obstante veredicto, that the evidence shows that the plaintiff's damages were caused by the negligence of the defendants Thomason and Hackney. It is contended that if these defendants were independent contractors the defendant Smith cannot be held liable for their negligence since the work done does not come within any exception stated by Code § 105-502, and if they were merely employees of Smith then the verdict exonerating Thomason and Hackney and finding against him is illegal under the line of decisions exemplified by Southern R. Co. v. Harbin, 135 Ga. 122 ( 68 S.E. 1103, 30 LRA (NS) 404, 21 AC 1011), which hold that in an action against a master and his servant for the negligence of the servant, a verdict against the master and in favor of the servant cannot stand.
The plaintiff's action was based on the concurrent negligence of the defendants and, while the defendant Smith contended that the plaintiff's damages were caused by the negligence of Thomason and Hackney as independent contractors and Thomason Hackney, the partnership defendant, contended that it was employed and the work was done by its servants under the direction and supervision of the defendant Smith so as to make its employees the special employees of the defendant Smith, the evidence adduced on the trial of the case did not demand a finding on the theory contended for by either defendant.
The evidence adduced on the trial authorized a finding that the partnership was employed to raise the level of the lot next to the building occupied by the plaintiff to a certain level as marked by the defendant Smith. The evidence showed that the partnership defendant did exactly what they were hired to do and the evidence did not disclose that by following the instructions of the defendant Smith they were following specifications that were so apparently and obviously defective as to put them on notice that the work was dangerous or likely to cause injury and that they should not attempt to do such work according to such specifications. See generally as to the right of a subcontractor to follow the plans and specifications furnished by a general contractor, 65 CJS 615, Negligence, § 96. See also Bell Son v. Kidd Roberts, 5 Ga. App. 518, supra.
Under the record in the case sub judice the general contractor had apparently performed some work on the contract prior to the time the defendant partnership was employed by him to do the specific work which it did according to the instructions given by the general contractor Smith. The evidence in the record does not demand a finding that the defendant partnership followed any plan or specification which it knew or should have known was defective or likely to cause injury or damage to third parties if followed. The evidence authorized the verdict, and the trial court did not err in overruling the general grounds of the motion for new trial or the motion for a judgment non obstante veredicto.
2. Special ground 3 complains of an excerpt from the charge wherein the trial court instructed the jury as to three of the exceptions provided by Code § 105-502 to the rule laid down by Code § 105-501 that an employer is not responsible for the torts of an independent contractor. The exceptions charged were those provided by subparagraphs 2, 5 and 6 of Code § 105-502. In such special ground the defendant Smith separately assigns error on each of the exceptions charged because there was no evidence adduced to support such exception.
While the evidence adduced on the trial of the case supported the charge as to the defendant Smith retaining the right to control the time, manner, etc., and as to ratification, the evidence did not support the charge which authorized the jury to find that the work done under the contract between the defendant Smith and the partnership defendant was of such a nature as to be dangerous to others however carefully performed. Under the decision of the Supreme Court in Louisville c. R. Co. v. Hughes, 143 Ga. 206 (1c) ( 84 S.E. 451), the charge on an inapplicable exception to the general rule laid down in Code § 105-501, supra, is error. In view of this holding what is complained of in the first special ground of the motion for new trial will probably not recur on another trial and therefore will not be passed upon.
3. Special ground 2 complains of the failure of the court to charge the jury "Every person shall be liable for torts committed by his servant within the scope of his business, whether the same shall be by negligence or voluntary," and "The master cannot be solely liable where the tort is committed negligently by his servant within the scope of the master's business." It is submitted that both the pleadings and evidence raised such issue and that it was error to fail to so instruct the jury even without request.
The defendant relies upon cases exemplified by Southern R. Co. v. Harbin, 135 Ga. 122, supra, wherein it is held in an action against the railroad and its engineer, that the verdict absolving the engineer and finding the defendant railroad liable could not stand where the sole acts of negligence against the railroad were acts imputable to it under the doctrine of respondeat superior. Such case is not authority for the charge insisted upon in the present case where the plea of the partnership defendant relied upon by the defendant Smith alleged in effect that its servants, who were not parties to the cause of action, were the special servants or employees of the defendant Smith. Such plea did not allege that the partnership defendant was the servant of the defendant Smith, and the employees alleged to be special servants of the defendant Smith were not parties to the action. The second sentence of such charge was not required under the pleadings and evidence and the trial court did not err in failing to give such charge to the jury.
In view of the ruling in Division 2 the judgment overruling the motion for new trial must be reversed.
Judgments affirmed in part; reversed in part. Hall and Russell, JJ., concur.