Bonaparte v. Wiseman

Schmucker, J., delivered the opinion of the Court. This suit was instituted by the appellee, who is life-tenant of the house and lot No. 815 King street, in Baltimore City, to recover damages for injury to her house resulting from ¹⁹ an excavation made by the appellant on the adjoining lots, Nos. 811 and 813 King street, for the purpose of erecting a warehouse thereon. All three lots were originally improved by dwellings. The house of the appellee was separated from those of the appellant by an alley two and a-half feet wide, which lay almost entirely upon the land of the latter; but was used by both parties in common.

The appellant, desiring to erect a warehouse upon his two lots, made a contract with one Anderson, a competent builder, to tear down the houses on the lots and erect thereon a warehouse. In the latter part of 1893 Anderson tore down the two old houses to the level of a few inches below the ground and also excavated a portion of the rear of the lots behind where the houses had stood and adjacent to the unimproved part of the appellee’s lot. He did nothing further to the property until about the middle of March, 1894, when he took out the foundations of the old house next to that of the appellee and excavated for new foundations to a depth of three or four feet below the foundations of her house, which settled and was injured. There was evidence tending to show that the excavation was the cause of the injury to the house, and also evidence tending to show that the appellee did not have previous notice or knowledge of the appellant’s intention to excavate below the level of her foundations.

At the request of the appellant the jury were required, in pursuance of the Act of 1894, ch. 185, to find specially upon the following interrogatories, to each of which they answered “ No.” “ Was the plaintiff, or her representative, Theodore Seigwart, notified of the intended digging below the foundation wall a reasonable time before the said digging below the foundation was begun ? ” “ Did the plaintiff or her representative, Theodore Seigwart, have actual knowledge of the defendant’s intention to excavate below her foundation a reasonable time before such excavation was begun ? ” ²⁰ The general verdict and judgment were against the defendant and he took this appeal. The appellant offered seven prayers, all of which were granted except the fourth and seventh. The seventh prayer will be first considered by us. This prayer is based upon the assumption that it appeared from the plaintiff’s own evidence that she had knowledge in December, 1893, or at latest in January, 1894, of the character and extent of the work about to be done and its proximity to the easternmost wall of her house and took no precautions for its protection.

We think the Court below properly refused to grant this prayer, because, while the record shows that the appellant’s contractor, Anderson, demolished the two old buildings on his lots during the time extending from September until December, 1893, and excavated for new foundations along the division line in the rear of the appellee’s house, it also shows that he then ceased work entirely and allowed the property to remain in the condition in which it was at that time for more than two months. The work done by the appellant’s contractor, was of course, open to the observation of the appellee or the occupants of her house and doubtless led them to infer that the appellant was getting ready to improve his lots and the fact appealing from evidence, that he. owned a warehouse at the rear of these lots, fronting on Pratt street, may have led them to further infer that he intended to build on the lots an addition to his warehouse, but it was asking too much of the Court to request it to direct the jury to assume from the evidence that the character and extent of the work about to be done by the appellant was apparent to the appellee or her agent in December, 1893, or January, 1894. The wisdom of the Court in refusing to grant this prayer was fully confirmed by the fact that the jury returned a negative answer to the interrogatories requiring them to pass specially upon the question of the possession of such knowledge by the appellee or her agent. The appellant’s fourth prayer asserts the broad proposition ²¹ that the appellant was not liable for the injury to the appellee’s house by the excavation on his lots, because the work was done by Anderson as an independent contractor under the written agreement appearing in the record.

The question of the extent to which the employment of an independent contractor to do work, which is placed entirely under his control, will relieve the employer from liability for injuries resulting to third persons has been much discussed by the Courts. The general principle broadly stated is that when the work is done by a competent contractor under an agreement which gives him complete control of the work and of the persons employed by him to do it, such persons will be his servants and not those of the employer and the latter will not be liable for injuries caused by the negligence of the workmen, because they are not his servants and are not under his control. But this doctrine has been repeatedly held not to relieve an employer from all responsibility of every kind for the consequences of defective or unskillful work done on his premises even by the servants of an independent contractor. In the case of Deford v. State, use of Keyser, 30 Md. 179 , Chief Judge Alvey, in an able and elaborate opinion reviews the leading cases upon this subject, quoting at length from the opinions of the learned Judges who decided them, and comes to the conclusion that 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 cojitract and those in which the thÍ7tg 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. In the case of the Ohio Southern R. R. Co. v. Morey, 47 Ohio St. 207 , the Court say : “ One who causes work to be done is not liable ordinarily for injuries that result from carelessness in its performance by the employee of an independent contractor to whom he has left the work without reserving for himself