On appeal from the Bergen County Circuit Court.
For the appellant, William J. Morrison, Jr.
For the respondents, De Turck & West.
The opinion of the court was delivered by
PARKER, J. The two respondents joined as plaintiffs in their respective individual rights, as provided by section 4 of the Practice act of 1912. The plaintiff Di Carolis was an employe of the plaintiff Messina, who was a tenant of premises adjoining land of appellant Terhune; and both plaintiffs sustained injury because of the caving of the land on their side of the property line, due to excavation for a new building on land of Terhune. The case is similar in its circumstances, though not in its outcome, to the case of Tooker v. Lonky, ante, p. 110, in which case, as in this, the owner made a general contract for building with a principal contractor, who sublet the contract for excavating. But in Tooker v. Lonky the subcontractor was not joined as a defendant; there was a voluntary nonsuit as to the owner and a recovery against the principal contractor, who appealed. In the present case there is likewise a recovery against the principal contractor (Pico), who does not appeal, a voluntary nonsuit as to the subcontractor corporation, which was not shown to be connected with the accident in any way, and also a recovery against the owner, who has appealed, and assigns for error the refusal of the trial court to grant a motion for a nonsuit, and a motion for direction of a verdict.
The complaint, in paragraph 7, counts on negligence in excavating "on said land" without leaving proper support for the store building in which Messina was a tenant, so that it collapsed, injuring his stock and fixtures, and causing personal injury to Miss Di Carolis; and in paragraph 8, seems to hint to a trespass by digging over the line and under the building occupied by plaintiffs; and in the same paragraph charges negligence in disobeying the local building code by failing to protect the excavation; and in failing to give notice of intention to excavate the adjoining land. Schultz v. Byers, 53 N.J.L. 442.
The motion to nonsuit as to Terhune, the owner, was rested on the ground that it appeared without dispute that Pico was an independent contractor and that there was no proof that Terhune had or exercised any control over the manner in which he did his work. This was refused, and an exception entered. The motion for a direction was put upon the same ground, adding that there was no competent testimony showing any encroachment (trespass) on the adjoining property. This was also refused, and exception entered.
It was undenied that Pico was the contractor. The building contract, which was in writing and in the form usual with such instruments, was put in evidence by the plaintiffs. It provides that Pico shall erect and finish the new building, located, &c., according to plans and specifications made by F.M., architect * * * "in a good workmanlike and substantial manner, under the direction of the said John W. Terhune, to be testified by a writing or certificate under the hand of the said John W. Terhune" * * *. The remainder of the instrument need not be reproduced. One point insisted on by the plaintiffs is based on the clause just quoted, which, it will be observed, designates not the architect, but the owner, as the person under whose "direction" the work is to be performed, and who is to certify to its due performance. The argument for respondents on this phase of the case is that such a clause in effect creates the relation of master and servant between the owner and the person named as contractor, so that in case of wrongful acts by the latter, the owner is liable on the theory of respondeat superior. But our view is to the contrary. It is common knowledge that every important working contract contains a provision of this character, referring to some one, usually an architect or engineer, the duty of overseeing the work, insisting on its proper performance from the standpoint of the owner, and enforcing that insistence by refusing to certify payment for work not according to the requirements. Such was the duty of the architect in Jansen v. Jersey City, 61 N.J.L. 243, 244; and such, no doubt, was the duty of the architect in Mann v. Max, 93 Id. 191. But it was not the duty of the
architect in the Jansen case to see to it that the wall built by the principal contractor should not fall on the plaintiff; nor was it the duty of the architect in Mann v. Max to take care, on behalf of his principal, that the scaffold over the sidewalk should not be built so low as to require the passerby to stoop in order to pass under it. So also in the present case, if the architect had been named in the quoted clause, it would have imposed on him no duty, though he represented the owner in seeing to a faithful performance of the contract, to provide against or prevent careless or trespassing excavation by the contractor. It must be assumed that the contractor was to do his work in a lawful manner; the work was not per se a trespass any more than in Mann v. Max it was per se a nuisance; and responsibility for either tort in performing it would fall on the shoulders of the contractor where it naturally belonged.
The fact that Terhune, named in the clause quoted, was the owner of the premises, does not alter the situation. The only difference is that he was personally to judge of the sufficiency of the work and be satisfied therewith, instead of his architect; but the fact that he was to take that part directly instead of through an agent, likewise imposed on him no responsibility for unlawful acts of the contractor in performing the work. Consequently, under well settled principles, the owner was not responsible for negligence or other unlawful act of the contractor unless necessarily contemplated by the contract or unless due to some personal interposition by the owner, as a result of which the relation of master and servant would be inferable. Cuff v. Newark and New York Railroad Co., 35 N.J.L. 17, 574; Redstrake v. Swayze, 52 Id. 129, 414; Sarno v. Gulf Refining Co., 99 Id. 340; affirmed, 102 Id. 223; Riley v. Jersey Leather Co., 100 Id. 300; Busch v. Seaboard By-Products Co., Id. 304; Bush v. Margolis, 102 Id. ...