Opinion
38800.
DECIDED MAY 8, 1961. REHEARING DENIED JUNE 1, 1961.
Action for damages. Baldwin Superior Court. Before Judge Carpenter.
Carlisle Edwards, J. Douglas Carlisle, for plaintiff in error.
Robert H. Herndon, Joseph B. Duke, Anderson, Walker Reichert, contra.
1. Where one has a contract with the owner of a house for the remodeling thereof and contracts with another, who exercises an independent business, for the manufacture and installation of a set of steps according to specifications supplied, for a stipulated sum, but retains no control or right to control the time or manner of executing the work, though having the right to require results in conformity with the contract and specifications, there is no relation of master and servant or of principal and agent between such contractors.
2. A suit for damages caused by the faulty installation of a set of steps by a subcontractor cannot be maintained against the main contractor, the facts not being sufficient to bring the case within any of the provisions of Code § 105-502, these being the only conditions under which such a suit can be maintained against the main contractor.
3. Where the main contractors were residents of Baldwin County and suit was filed there against them and a subcontractor who was a resident of Bibb County and where, because of the absence of any relationship between them of master and servant or of principal and agent and where none of the conditions under which the main contractors could be held liable for a tort of the subcontractor were shown by the evidence, the suit was not maintainable against the main contractor, and it follows that the Superior Court of Baldwin County had no jurisdiction of the subcontractor.
DECIDED MAY 8, 1961 — REHEARING DENIED JUNE 1, 1961.
Samuel B. Wright brought suit in the Superior Court of Baldwin County seeking the recovery of damages on account of certain injuries alleged to have been sustained when a set of iron steps, installed by L. E. Webb in connection with the remodeling of a house, fell, throwing him to the ground. In his petition Wright alleged that a contract had been entered into with E. J. Smith Sons, a partnership with all partners residing in Baldwin County, for the remodeling of the house; that E. J. Smith Sons had employed L. E. Webb, trading as B. W. Iron Works, a resident of Bibb County, to manufacture and install iron steps from the back porch to the ground; that Webb, as agent of E. J. Smith Sons, did manufacture and install the steps, but in such a negligent manner as to cause him to fall and be injured when, on the morning following the installation of the steps and when he was leaving the house, he stepped on the top step and the steps fell to the ground.
Webb filed a plea to the jurisdiction, contending that his relationship to the main contractor, E. J. Smith Sons, was not that of servant or agent, but was that of independent contractor or subcontractor, and that since he was a resident of Bibb County, the superior court of that county and not that of Baldwin County, had jurisdiction of any action against him. The issue made by his plea to the jurisdiction came on for a separate trial at which the evidence disclosed the following undisputed facts:
The plaintiff, negotiating with Chester B. Danuser, who was one of the partners in E. J. Smith Sons, had entered into a contract on behalf of his mother-in-law with the partnership for the remodeling of her house located in Milledgeville. When the remodeling had progressed almost to a completion, Wright informed Danuser that his mother-in-law, Mrs. Beeson, desired to have iron steps installed from the back porch to the ground, and Danuser, saying that he could get a company engaged in that line of business to manufacture and install the steps, proceeded to make measurements and prepare sketches and specifications by which the steps could be manufactured. He took the sketch, or drawing, with specifications thereon, to Macon for the purpose of engaging Webb to do the job. Webb was not available, but Danuser showed the drawing to his wife, explained it to her and left it with her, asking that she have her husband to proceed with the manufacture and installation. The drawing showed the dimensions of the steps and the color they were to be painted. No other or further instructions were ever given by E. J. Smith Sons to Webb, and nothing was said by Danuser in his contracts with Webb or his wife by which any right to control the time, method or manner of manufacturing or installing the steps was reserved, though a "change order" might have been given. In fact, neither Danuser nor any other member of the partnership of E. J. Smith Sons ever saw the steps or had any contract with Webb from the time Danuser arranged with him, through his wife, for their manufacture and installation until after Webb had placed or installed them and the plaintiff had fallen therefrom, when Danuser telephoned Webb in Macon and asked him to come or send over and complete the installation.
When Webb had completed the manufacture and painting of the steps at his shop in Macon, he and two men who were in his employ and on his payroll loaded the steps on his truck and took them to the home of Mrs. Beeson in Milledgeville for the purpose of installing them. However, it was raining rather hard and they left the steps in place but not secured to the house. After receiving the telephone call from Danuser, Webb and his men returned to complete the installation.
On the afternoon following his fall from the steps, Wright, then in the hospital, was visited by Danuser who expressed interest in the manner in which Wright had fallen and the injuries sustained, and extended sympathy, saying to him: "You have nothing to worry about, Mr. Wright. The B. W. Iron Works were working for me, and I consider myself responsible for their actions, that is to say, for their installation of the steps, for everything they did."
However, the evidence shows that neither Webb nor the men who assisted him in the work of manufacturing and installing the steps were ever on the payroll of E. J. Smith Sons, and on direct examination Danuser testified that but for the contract made with Webb, through his wife, for the manufacture and installation of the steps, Webb would not have been working for E. J. Smith Sons, though he did say on cross-examination that "he [Webb] was working for us" on the day when the steps were set in place.
At the conclusion of the evidence a motion was made on behalf of the defendant Webb for a directed verdict, which was overruled. The jury then returned a verdict against the plea to the jurisdiction, and thereafter a motion for a judgment non obstante veredicto and a motion for new trial were made, both of which were overruled.
1. Since Webb had his own shop in Macon where he was engaged in the manufacture and installation of iron steps, railings and the like, there would seem to be no doubt that he was engaged in an "independent business' within the contemplation of Code § 105-501. See Yearwood v. Peabody, 45 Ga. App. 451 (1) ( 164 S.E. 901). Applying the test of whether the contract under which the work was done gave to the employer, E. J. Smith Sons, the right to control the time, manner and method of executing the work, or whether any such control was in fact assumed or exercised, as distinguished from the right merely to require certain definite results in conformity with the contract, we think that the evidence demanded a finding that the relationship between E. J. Smith Sons and Webb was that of employer and independent contractor. The testimony of Danuser that when the steps were set in place Webb "was working for us" is not consistent with that relationship. Bibb Manufacturing Co. v. Souther, 52 Ga. App. 722 ( 184 S.E. 421); Weiss v. Kling, 96 Ga. App. 618 ( 101 S.E.2d 178); Rodgers v. Styles, 100 Ga. App. 124 (2, 5) ( 110 S.E.2d 582); Robbins Home Improvement Co. v. Guthrie, 213 Ga. 138, 140 ( 97 S.E.2d 153). There was no evidence indicating that the employer retained the right to control, or that there was at any time any interference with Webb in his manufacturing of the steps or the installation thereof, or that any control was assumed or exercised, nor can plaintiff's injury be traceable to the exercise of such power by E. J. Smith Sons. See Mount v. Southern Ry. Co., 42 Ga. App. 546, 550 ( 156 S.E. 701). The fact that a change in the plans or specifications might have been effected by a "change order" did not amount to a retention of control.
2. Inasmuch as the evidence did not disclose the existence of any of the conditions which would, under the provisions of Code § 105-502, impose liability upon the employer for the negligence of his independent contractor, the suit against E. J. Smith Sons was not maintainable. See Robbins Home Improvement Co. v. Guthrie, 213 Ga. 138, supra.
The statement made by Danuser to Wright when he visited him in the hospital is not sufficient to charge the employer with the contractor's negligence, nor does it amount to a ratification thereof. Basinger v. Huff, 98 Ga. App. 288 ( 105 S.E.2d 362); Dougherty v. Woodward, 21 Ga. App. 427, 430 ( 94 S.E. 636); Rape v. Barker, 25 Ga. App. 362, 363 ( 103 S.E. 171).
3. If the suit is not maintainable against the employer, E. J. Smith Sons, it must follow that no action can be maintained against Webb, the independent contractor, in any county other than that of his residence. Shelton v. A. C. L. R. Co., 88 Ga. App. 834 ( 78 S.E.2d 99); Scoggins v. Hill, 90 Ga. App. 283 (2) ( 82 S.E.2d 739); Young v. Koger, 94 Ga. App. 524 ( 95 S.E.2d 385); Wrinkle v. Rampley, 97 Ga. App. 453 ( 103 S.E.2d 435); Citizens Bank of Hapeville v. Thompson, 99 Ga. App. 466 ( 108 S.E.2d 750); Morris v. Bell, 100 Ga. App. 341 ( 111 S.E.2d 270).
Accordingly, the trial court erred in overruling the motion for a judgment n.o.v. on the plea to the jurisdiction, and that judgment must be reversed with direction that a judgment be entered sustaining the plea.
Reversed with direction. Carlisle, P. J., and Nichols, J., concur.