Hopper v. S. S. Ordway & Sons, 157 N.C. 125 (1911)

March 22, 1911 · Supreme Court of North Carolina

157 N.C. 125

W. A. HOPPER v. S. S. ORDWAY & SONS and THE AVALON MILLS.

(Filed 22 March, 1911.)

1. Contracts — Independent Contractor — Negligence—Supervision— Right to Terminate.

A responsible party who has contracted to complete a work in its entirety, in this case a mill, is an independent contractor and solely liable as such for damages for personal injuries to an employee working upon its construction; and the fact that the contract with the owner provides for the inspection of the work by the engineer of the latter to ascertain that it comes up to the plans and specifications he has furnished therefor, with clauses of forfeiture under the contract if it does not; and that the engineer may require the contractor under like conditions to put on an extra force to complete the work, if in his judgment it is necessary to do so to bring it within the time agreed upon, do not alter the relationship of independent contractor so as to make the owner liable for damages for his negligence. Denny v. Burlington, 165 N. C., 33, cited as controlling.

2. Same — Interpretation of Contract — Conclusiveness.

When there is no right to put an end to a contract to construct a piece of work, in this case a mill, which was to have been done in its entirety by the contractor, but merely the right on the part of the owner to terminate it in the event the contractor should not perform it according to its reasonable stipulations under the inspection of the engineer of the former, there is no application of the doctrine that “When the employer may at any time terminate the employment, though strong evidence • that the employee is a mere servant, it is not conclusive.”

Appeal from W. J. Adams, J., at June Term, 1911, of ROCKINGHAM.

This is an action to recover damages for tbe death of tbe plaintiff’s intestate, caused, as tbe plaintiff alleges, by tbe negligence of tbe defendants.

Tbe plaintiff was aiding in building tbe foundation of tbe mill of tbe defendant Avalon Mills at tbe time of bis injury, and there is ample evidence of negligence.

Tbe defendant Avalon Mills denies negligence, and alleges that tbe work was being done by tbe defendants Ordway & Sons, as independent contractors, and tbe defendant’s counsel say that the only question presented by tbe eleven assignments of error is whether or .no S. S. Ordway & Sons aré independent contractors.

There are three paper-writings which constitute tbe contract between tbe defendants.

Tbe first is entitled, “Specifications for constructing tbe masonry abutment and bead gates for tbe Avalon Mills at Mayo-dan, N. 0.,” and all specifications relate wholly to tbe material to be used, except tbe fourth, seventh, eighth, and ninth, which are as follows: '

“4. Mortar shall be composed of two parts clean, sharp sand and one part of Rosendale cement of such brand as tbe engineer may approve, and mixed and used in such manner as be may direct.”

“7. Coping and arch masonry, should any be required, is not to be included in this work, but may be furnished by tbe company and set in place by tbe contractor at a fair price, to be determined by tbe engineer.”

“8. Tbe work shall be begun within ten (10) days from tbe time of award of tbe contract, and be finished and completed within four (4) months thereafter. Should the contractor not prosecute tbe work with such vigor as to indicate tbe corripletion of tbe work within tbe time specified, be must increase tbe force and equipment to sucb extent as the engineer may deem necessary to complete the work within the prescribed time, or suffer the penalty of a forfeiture of his contract and all the monies that may be due him upon the work at such time as the right may be exercised by the company, party of the second part, viz., The Avalon Mills.”

“9. At the end of each thirty (30) days after the work is begun the engineer shall measure up all the finished work, and make due and proper safe allowance for unfinished work, and render an estimate of the amount due the contractor for such work, which amounts shall be paid to him, less ten (10) per cent, which shall be held until the final completion of the work by the contractors.”

The second is entitled, “Specifications for constructing the head race or canal for th.e Avalon Mills Company, at Mayodan, N. C.,” and contains detailed statements as to how the work shall be done, and among others, the following provisions: “Should the contractor not prosecute the work with such vigor as to indicate the completion of the work within the time -specified, he must increase the force and equipment to such an extent as the engineer may deem necessary to complete the work within the prescribed time, or suffer the penalty of a forfeiture of his contract and all his money that may be due him upon the work at such time as this right may be exercised ’by the company, party of the second part, viz., The Avalon Mills.” “The entire work shall be done in full accordance with the directions and instructions of the engineer or his assistant, and a failure on the part of the contractor to observe and well and truly carry out the work in accordance with the instructions of the engineer or his assistant shall be deemed sufficient cause for the exercise of his forfeiture clause set forth in section (8) by the said Avalon Mills.”

The third is entitled, “Specifications to accompany plans of dam, bulkhead gates and spillway for the Avalon Mills, all made for same by C. E. Makepeace & Co., mill engineers, Providence, E. I., August 5, 1899,” and after specifying how the work shall be done, says: “In the foregoing specifications it is intended to enumerate all of the leading particulars in the erection and finishing of all this work, and it is understood by the contractor that the same is to be finished complete to the intent and meaning of these specifications and the plans and details; and all materials and workmanship connected with this work must be entirely satisfactory to C. R. Makepeace & Co., or the engineer or superintendent in charge of the work. It is understood by the contractor that should any difference of opinion arise, respecting said workmanship, work or materials, or any other matter whatsoever relative to the erection and finishing of this work, between the contractor and owners, such difference -shall be submitted to C. R. Makepeace, and his decision thereon shall be 'final and conclusive between both parties, and it is so understood and agreed by said parties.”

It was in evidence that one of the workmen went to Avalon where the work was being done, upon a telegram sent by the superintendent of the defendant mills, but the superintendent testified that he sent the telegram at the request of Ordway & Sons, who needed a mason, and because they were not acquainted at the place where the mason lived.

The plaintiff contended that, upon the face of the papers, Ordway & Sons were not independent contractors, and requested the judge to so charge the jury, and upon his refusal to do so, excepted.

There was a verdict against Ordway & Sons, but no judgment upon the verdict because of their discharge in bankruptcy.

There is no claim that Ordway & Sons were not responsible parties at the time the contracts were made.

The plaintiff excepted and appealed.

Q. 0. McMichael and H. B. Scott for •plaintiff.

Johnston, Ivie & Dalton, and Manly, Hendren & Womble for defendant.

AlleN, J.,

after stating the case: The case of Denny v. Burlington, 155 N. C., 33, is decisive of this controversy, and upion that authority, in the absence of other evidence, his Honor might have held as matter of law, upon the papers in evidence, that the relation of independent contractor was established.

In the Denny case the city of Burlington entered into a contract for tbe construction of a system for water and sewerage, in which the details as to material, the work to be performed, and the time of performance were set out with particularity, and it was also provided that the materials furnished and the labor done should be done “in accordance with the specifications and plans, and the instructions to bidders and the proposal and such detailed directions, drawings, etc., that may be given by the engineer from time to time during the construction, and in full compliance with this agreement,” and that, “to prevent all dispute and litigation, it is agreed by and between the parties to this contract that the engineer shall in all cases determine the quality and quantity of the several kinds of work which are to be paid for under this contract, and his decisions shall be final and conclusive, and he shall determine all questions in relation to lines, levels, and dimensions of the work and as to the interpretations of the plans and specifications. The committee, through the engineer, shall have the right to make any alterations in the plans or quantity of the work herein contemplated, and it is expressly agreed and understood that such alterations, additions, modifications, or omissions shall not in any way violate this contract, and the contractor hereby agrees not to claim or bring suit for any damages, whether loss of profit or otherwise. . . . Whenever the contractor is not on any part of the work where it is desired by the, engineer to give instructions, the Superintendent or foreman who may be in charge of that particular part of the work shall receive and obey said instructions from the engineer. . . . But no work other than that included in the contract shall be done by the' contractor without a written order from the engineer. . . . The contractor further agrees that if the work to be done under this contract shall be abandoned, or if the contract shall be assigned' by said contractor, otherwise than herein provided, or if at any time the engineer shall be of the opinion, and shall so certify in writing to said committee, that the said work is unnecessarily or unreasonably delayed, or that the said contractor is willfully violating any of tho terms or conditions of this contract, or is not executing this contract in good faith, or is not making such progress in the executing1 of said work as to indicate its completion witbin tlie time specified, said committee shall have the right to notify said contractor to discontinue all work or any part thereof under this contract, and upon such notification said contractor shall discontinue said work, or such parts thereof as said committee may designate; and said committee shall thereupon have the power to employ by contract, or otherwise, and in such manner and at such prices as it may determine, any persons, etc., which it may deem necessary to work at and be used to complete the work herein described, or such part of it as said committee may have designated.” The engineer was appointed by the defendant, and it was held that the person with whom the contract was made was an independent contractor.

It will be observed that not only were the materials to be 'furnished and the labor to be done, subject to the supervision of the engineer of the defendant, but in accordance with his im structions, and that the defendant reserved the right of inspection and the right to terminate the contract. There are also other provisions extending the authority of the defendant beyond the powers conferred on the Avalon Mills in this case.

The citation from A. and E. Enc., vol. 16, p. 190, that “the fact that the employer may at any time terminate the employment, though strong evidence that the employee is a mere servant, is not conclusive in that regard,” is not, in our opinion, applicable to the contract under consideration, because, under that contract, there is no absolute right to terminate the contract at any time, but to put an end to it, if the contractor is not performing it according to the stipulations, which is reasonable and necessary. The same author, on pages 188 and 189, states with accuracy the prevailing rule as to the right to exercise supervision. He says: “A reservation of the employer of the right by himself or his agent to supervise the work for the purpose merely of determining whether it is being done in conformity to the contract does not affect the independence of the relation. The fact that the work is to be supervised by an architect representing the owner is also immaterial if this involves merely his approval or disapproval of the results of the work, and not directions as to tbe mode of arriving at sucb results. And it bas been held tbat a provision tbat tbe work shall be done under tbe direction and to tbe satisfaction of a representative of tbe employer does not make tbe employee a mere servant, but tbat sueb a provision is merely to secure a satisfactory performance of tbe work in compliance witb tbe contract. Nor is it material tbat tbe contract provides tbat tbe employer shall, during tbe progress of tbe work, define and direct tbe scope thereof.”

His Honor, instead of deciding tbe question as matter of law, submitted it to tbe jury in a charge which is full, clear, and accurate, and which might be copied as a correct summary of.the law in determining when one is an independent contractor, and tbe jury having decided against tbe plaintiff, there is nothing, upon tbe appeal, of which be can complain. It is to be regretted tbat be has a barren recovery for a death caused by negligence, but this consideration will not justify fixing responsibility on a party who is not liable.

We find

No error.