Muldry v. Fromherz & Drennan

78 So. 126, 142 La. 1087, 1917 La. LEXIS 1743

• Court: Supreme Court of Louisiana
• Decided: June 30, 1917
• Docket: No. 22495
• Status: Published

Opinions

PROVO STY, J.

A wagon loaded with bricks from a building that was being demolished passed across the sidewalk into the street and struck plaintiff’s automobile and injured her, and plaintiff sues in damages the defendants, who were the contractors for demolition of the building and the erection of another on its site.

The defense is that the defendants had entered into a contract with one Lamothe for the demolition of the building and the removal of the dCbris, and that Lamothe had in turn entered into a contract with one Villere to cart away the débris, and that both Lamothe and Villere were independent contractors for whose acts defendants were in no wise responsible, and that the wagon in question belonged to Villere, and was being operated by him, and was under his sole and exclusive control.

Villere testified as follows:

“Q. What is your business? A. Drayage. Q. General drayage? A. General drayage. Q. You operate more than one cart? A. I operate seven or eight. Q. You take general contracts for hauling? A. I do. Q. You employ and discharge your own employes? A. I do. Q. You control their salaries? A. I do. Q. Has Promherz & Drennan or any other contractor ever attempted to dictate to you as to the employment of your employes? A. Never; they may have made a suggestion to keep a man off a job or send a man there as a request, but they don’t, as a rule, dictate. Q. You know of no case in which Promherz & Drennan has ever compelled you to hire or fire a man? A. No.”

The defendant Drennan testified:

“Q. In your contract with Lamothe, or, in fact, with any of these demolishers, do you reserve the right to employ or discharge their labor? A. No. Q. Or to maintain any supervision over the work? A. No, sir. Q. Do you, as a matter of fact, maintain any supervision o^er their work, other than to see that they carry out the terms of their contract? A. That’s all I do. Q. In your contract with Lamothe, did you retain any supervision or control over the manner of Lamothe’s doing his work? A. No, sir. Q. You’re sure of that? A. I am sure of it; Lamothe is a competent wrecker.”

Under these circumstances Villere was an independent contractor, for whose acts the defendants were not responsible.

We quote from defendant’s brief as follows:

“Where one contracts to do and deliver certain specific work which is not unlawful, and the manner of the doing of which, including the employment, payment and control of the labor, is left entirely to him, he is an independent contractor, for whose acts or omissions in the execution of such contract the other contracting party is not liable. Robichaux v. Hebert et al., 118 La. 1089 [43 South. 887, 12 L. R. A. (N. S.) 632],

“One who contracts with another for the doing of certain work, and does not undertake to control or direct him, or his employes, with respect to the manner of doing the work, is not liable to a workman employed by the contractor. Metzinger v. N. O. Board of Trade, Ltd., 120 La. 124 [44 South. 1007].

“It follows that if the master has retained no control oyer the details of the work let to another he is not the master of the servants of the contractor doing the work, and in case of injury the workman must look to the contractor alone for indemnity. Wilkinson on Personal Injuries, p. 141, and authorities cited thereunder.

“A railroad company, for which a contractor has undertaken to build or put in condition a new roadbed, is not liable in damages for injuries sustained by a person employed by the contractor, and over whom in the discharge of his function the company exercises no control; * * * nor yet is the question of the company’s liability affected by the fact that it reserved to itself a right of supervision to the extent necessary to secure the proper execution of the contract and the right to object to the employment of persons selected by the contractor to operate .his construction trains over its road. Robichaux et ux. v. Railroad Co., 131 La. 727 [60 South. 206].

“The mere fact that a proprietor retains a general supervision over work to be constructed for him by another, for the purpose of satisfying himself that the contractor carries out the stipulation of his contract, does not make him [the proprietor] responsible for the wrongs done to third persons in the prosecution of the work. Lutenbacher v. Mitchell-Borne Const. Co. et al., 136 La. 805 [67 South. 888], quoting with approval the above from Thompson on Negligence, § 660, p. 598.

“The master’s liability rests upon his right to select the servants and to control their work; but when this selection and control rests in a contractor he [the master] is freed from such liability. Where the contractor undertakes to perform certain work, without interference from the contractee as to the mode or manner of doing the work, and the contractor employs the men who are to do the work, the latter is an independent contractor and not the servant of the contractee.

“Independence in control in employing workmen and in selecting the means of doing the work is the test usually applied by courts to determine whether the contractor is independent or not. Lutenbacher v. Mitchell-Borne Const. Co. et al., 136 La. 805 [67 South. 888].

“One who contracts to furnish material, works when and how he pleases, furnishes his own implements, employs, directs, pays, and discharges his own laborers, and is not carried on the pay roll of the other contracting party, is an independent contractor. Volume 73, No. 3, Southern Reporter Advance Sheets; Clark v. Tall Timber Lumber Co. [140 La. 380, 73 South. 239]. See, also, Riley, Tutrix, v. State Line S. S. Co., 29 An. 791 [29 Am. Rep. 249]; Holmes v. Railroad Co., 49 An. 1470 [22 South. 403]; Gallagher v. Exposition Co., 28 An. 944; Farmer v. Kearney, 115 La. 722 [39 South. 967, 3 L. R. A. (N. S.) 1105].”

The learned counsel for plaintiff say that under the contract between defendants and Lamothe, the latter was to leave on the site of the demolished building 100,000 of the old bricks, and that these were the bricks which were being hauled at the time of the accident, and that they were being hauled in pursuance of a contract between defendants and Villere, and not between the latter and Lamothe. We find that by the terms of Lamothe’s contract all dSbris were to be removed from the premises; but if it were otherwise, we do not see what difference it would make, so far as the liability of defendants is concerned. Villere would still be an independent contractor, and alone responsible for any damage caused by his employés. It would let Lamothe out, but not bring defendants in.

The judgment appealed from is set aside, and the suit is dismissed as against Fromherz & Drennan, at the costs of plaintiff.

LECHE, X, takes no part.