Caldwell v. Carroll , 139 S.C. 163 ( 1927 )

I cannot make plainer my views of this case than I have done in my dissenting opinion, and for the reasons therein stated I dissent from the order refusing the petition for a rehearing.

I am unwilling to believe that the Court fully comprehends the unlimited degree to which the opinion in this case has extended the liability of a county; it far exceeds in extent any decision that has heretofore been rendered by this or any other Court; in my opinion, it is subversive of the settled principles affecting the liability of an owner for the negligence of an independent contractor or his agents and servants; and in the hundreds of instances of road improvement now begun or contemplated, it is calculated to seriously embarrass practically every county in the State.

Here we have a case of a county legally letting a contract for the construction of an improved highway to a contractor, under a written contract for the performance of every act and the supplying of all material and labor in connection with that construction, under a surety company bond to the county for his faithful performance of his contract. If that does not present a case of independent contractor, I do not understand the English language. In every clime, under every judicial sky, it has been the settled law that the proprietor of any kind of property to be constructed or improved is not liable in damages for the negligent act of an independent contractor, and why, at this day, that principle should be departed from, and a county, whose liability is limited to statutory creation, be made an exception to that rule, is beyond my comprehension, and receives my most emphatic disapproval.

As Mr. Dillon says:

"In other words, the principle of respondent superior does not as a rule extend to cases of independent contracts, where the party for whom the work is to be done is not the immediate superior of those guilty of the wrongful act and has no choice in the selection of workmen and no control over the manner of doing the work." 4 Dillon, M.C. (5th Ed), § 1721; R. Co. v. Tillotson, 84 Wn., 678;147 P., 423.

A county is a portion of the State, a carved-out segment of the State. It partakes of the State's immunity for the negligence of its agents and servants except when otherwise prescribed by Statute. Certainly there is no Statute making it liable for the negligence of an independent contractor or of his agents and servants.