Young v. Smith & Kelly Co. , 124 Ga. 475 ( 1905 )

Fish, C. J.

(After stating the facts.) The general rule is well 'established that an independent contractor is not liable for injuries to a third person, occurring after the contractor has completed the work and turned it over to the owner or employer and the same has been accepted by him, though the injury result from the contractor’s failure to properly carry out his contract. 1 Thomp. Neg. §686; Whart. Neg. §4-38 et seq.; 16 Am. & Eng. Enc. Law, 209. There are some modifications of this rule. Among them are cases where the work is a nuisance per se, or where it is turned over by the contractor in a manner so negligently defective as to be imminently dangerous to third persons. See above-cited authorities. The pres'ent case, we think, falls within the general rule. Smith & Kelly Company was an independent contractor. It had fully completed 'its contract for loading the vessel with phosphate rock and had turned it over to the consignees, Minis & Company. The work was not a nuisance, nor was the condition of the hatch as left by Smith & Kelly Company imminently dangerous in itself. Plaintiff, a laborer of this firm, was injured, as the petition alleged, by the negligent failure of Smith & Kelly Company to perform its contract with the owners of the ship. It is clear that, under 'the rule above announced, the plaintiff, if he had been a servant of the owners off the vessel, would have had no cause of action against Smith & Kelly Company. As he was a servant of Minis & Company and not of the owners, the rule is equally applicable, and he had no cause-of action against the defendant. Fulton County Street Railway Co. v. McConnell, 87 Ga. 756, is cited for the plaintiff in error. There-a street railway company, having authority under its charter to-construct a railway in a public street, had the work done by an independent contractor. An injury to a person passing along the street was caused by the negligence of a servant of the contractor in unnecessarily and improperly laying down loose rails in advance of the workmen engaged in constructing the track. In a suit against both the railway company and the contractor, the contractor was held liable for the consequences of such negligence. The railway company was held not liable, on the ground that it had not reserved any control over the conduct of the contractor in executing, the work. Counsel for the plaintiff in error also cite Ridgeway v. Downing Company, 109 Ga. 591. In that case the owner of a vacant city lot, who for years had suffered the public to use a thoroughfare over the same, employed an independent contractor to construct a building thereon, according to certain specifications, including-piling for the foundation. The contractor dug a trench for such purpose across the thoroughfare. It was held that the owner off the lot was not liable for a personal injury sustained by one who fell into the trench by reason of its unguarded condition. TÍie-non-liability of the owner was put upon the same ground as that announced in Fulton County Street Railway Co. v. McConnell, that is, that the owner had had no immediate direction and control over the work. Both of these eases were governed by the decision rendered in Atlanta & Florida Railway Co. v. Kimberly, 87 Ga. 161, 164, where it was held: “Where an individual or corporation contracts with another individual or corporation exercising an independent employment, for the latter to do a work not in itself unlawful or attended with danger to others, such work to be done according to the contractor’s own methods and not subject to the employer’s control or orders except as to the results to be obtained, the employer is not liable for the wrongful or negligent acts of the con.tractor or oí the contractor’s servants.” This rule is embodied in the Civil Code, §3818, and exceptions thereto in section 3819. There is nothing in these cases in conflict with the general rule that an independent contractor is not liable for injuries to a third person, occurring after the completion of the work and its acceptance by the owner or employer, resulting from the failure of the contractor to properly carry out his contract. The petition was properly dismissed upon general demurrer, as it set forth no cause of action against the defendant.

Judgment affirmed.

All the Justices concur.