Burke v. Ireland

In the discussion of the particular ground upon which, in our view of the case, this judgment may rest, it is not necessary to review the facts further than to state so much as is essential for the assignment of reasons upon which our judgment rests. There has never been any dispute as to the cause of the collapse of the building in question. Two causes concurred: First, the inherently defective and insufficient foundation of earth upon which the concrete was placed for the support of the superstructure; and, second, the insufficient depth of the concrete which was laid upon the earth. Upon the trial the court submitted to the jury two questions, upon which it charged that, if the defendant Ireland was responsible for the conditions involved therein, a recovery might be had. These questions were: Was the plan of the building inherently defective? And was the defendant Ireland responsible for the failure to place the column which fell, upon a secure foundation? When this case Avas before the court upon a former appeal ( 50 N. Y. Supp. 369 ), the rule was laid down governing the liability of the defendant Ireland in respect of these questions in the following language:

“The evidence on the trial tends to establish that one of the most probable causes of the collapse of the building was the defective character of the foundation under the pillar, where the concrete was laid partly over earth, and partly over the old cistern wail. Such, too, is the claim of the counsel for both parties. The question of who was responsible for the defective character of that foundation is not free from doubt. Parker’s contract did not include the excavation. Under the specifications, a uniform thickness of eighteen inches of concrete for the piers is prescribed. No provision whatever is made, either in the contract or in the specifications, for the contingency that excavation to the depth of two feet might not find soil on which it was safe to rest the foundation of the piers which Avere to carry the walls or columns. It might have eventuated, as probably was the actual case, that it was necessary to excavate below the bottom of the cistern aau.11 before it would be safe to commence the laying of the concrete foundation; or it might even have happened that quicksand Avould be found, and it Avould be necessary to drive piles, or adopt some other special means to provide a secure place on which to lay the concrete. Under the contract, no duty was devolved upon Parker in these respects, except one, i. e. that no concrete should be laid in trenches until they had been examined by the architect. The duty, therefore, of providing a proper foundation upon which the concrete was to be laid, and of passing upon and determining the sufficiency of that foundation, rested on the owner or his agent. If there was negligence in this respect by the owner or agent, it would not absolve the former from liability, even though the contractor Avas also careless.. The evidepce tends to show that the trench was laid out by the foreman of Parker, the contractor, and that the excavation was made and the concrete laid in the absence of the architect. On this state of facts, and assuming that the foundation was improper, the negligence of the contractor’s foreman is plain, for the specifications provided that he should not lay concrete until the trenches had been inspected by the architect. But it does not necessarily follow that the architect or superintendent of construction was not also to blame. There is evidence tending to show that he absented himself from the building during the time the foundations were being excavated, and also that he accepted and passed the concrete work without having examined the bed on Avhich it was laid. It may be that the fact that the concrete had already been laid before his attention was called to the trench might be a sufficient excuse for his conduct, and that eA'en a careful man might have been deceived as to the character of the foundation. This, however, was a question of fact for the jury. Therefore we cannot say, as a matter of larv, that the appellant was in no wise responsible for an accident occasioned by the improper character of the soil on which the concrete was placed.”

“Where an owner employs a competent and skillful architect to design the building, he is not responsible, to the employés of contractors who agree to construct the building according to such design, for faults or defects in the design of which he neither knew nor should have known. Of course, to relieve the owner from liability, it must appeal" that he fairly committed the subject-matter to the architect, and that the deficiencies or defects of the design did not proceed from his interference or direction.”

In a recent case the appellate division in the First department, upon a record similar to the one we are now considering, held the same rule. Fox v. Ireland (Sup.) 61 N. Y. Supp. 1061 . Adopting this as the law, we do not find in this record proof conclusive that the defendant committed this matter entirely to an architect. The defendant Ireland was not sworn as a witness upon the present trial; neither was his architect. While there is proof in the record from which it might be found that the architect was competent, yet there

Substantially all of the questions raised as errors in ruling upon the trial and in the charge are covered by the discussion already had. We are not able to see that any substantial error was committed upon the trial, and conclude that the judgment should be affirmed.

Judgment and order affirmed, with costs. All concur, except GOODRICH, P. J., who dissents, and HIRSCHBERG, J., who takes no part.

I cannot agree in the conclusion reached by my learned associates, and therefore state my own views, necessarily at some length.

“It does not appear, except from the recitals in the contracts, that Behrens ■was an architect at all,—much less, that he was a competent or proper one; nor does it in any way appear that Behrens was responsible for the plan and character of the building, and that the appellant was not. For aught that there is in the record before us, the whole plan and character of the building, the size of the foundations, of the walls, of the posts and the girders, may have wholly proceeded from the direction of the appellant. The duty or discretion of an architect is confined within such limits as his employer imposes upon him. The appellant having contracted for the construction of this building, if the building was inherently defective and dangerous, prima facie he is responsible therefor; and if he can escape liability for such inherent weakness and danger by the employment of an architect, and his acting upon the architect’s advice, it was incumbent on the appellant to affirmatively show those facts. Therefore the employment or advice of the architect is not an element in this case.”

In the opinion, also, in the Bavage Case, which was argued at the same time as, and is reported with, the Burke Case, it was said:

“We think that in such case, where an owner employs a competent and skillful architect to design the building, he is not responsible to the employes of contractors who agree to construct the building according to such design, for faults or defects in the design of which he neither knew nor should have known. Of course, to relieve the owner from liability, it must appear that he fairly committed the subject-matter to the architect, and that the deficiencies or defects of the design did not proceed from his interference or direction.”

It is to be observed that on the last trial of this action the court embodied the last quotation in the charge, and it is the law governing the present appeal.

The learned counsel for the plaintiff states in his brief that the case was submitted to the jury on two grounds:

“(1) Whether the defendant Ireland was guilty of negligence in having contracted for the construction of a building which was inherently defective and

dangerous, or in violation of the building law; (2) whether the defendant Ireland, was guilty of negligence in failing to use proper care to provide a proper bed or bottom upon which to rest the foundation for the third tier of columns.”

The learned counsel for the defendant states the submitted questions somewhat differently:

“(1) Was there anything in the original plans for the foundation which was inherently defective? (2) Was the defendant able to judge of the sufficiency of the foundation as it appeared to him upon the plans as they were prepared .for him? (3) Did the defendant fairly commit the subject-matter of the building to the architect? (4) Did the defendant furnish to the contractor a safe and proper bottom upon which to place the foundation for pillar No. 3? Was the condition of the ground such that the defendant or the architect ought to have taken notice of a condition which might imperil the construction of the building? Was there anything there that could be seen? Ought the defendant or the architect to have discovered the condition of things, a'nd seen to it that the foundation was not erected upon such a bottom as concededly was found to exist there subsequently?”

The defendant excepted to each of these portions of the charge.

The first ground upon which, as argued by the plaintiff’s counsel, the case was submitted to the jury, was whether Ireland was negligent in contracting for the construction of an inherently defective and dangerous building, or one in violation of the building law. This question involves the qualifications of the architect, the defendant’s reliance thereon, the character of the building as originally planned, and the approval of the plans by the building department. On the last trial, as well as on the first, neither the defendant Ireland nor Behrens, the person named as architect in the building contract, was examined as a witness. Ireland, however, was examined as a witness at the subsequent trial of the Savage case. The plaintiff’s counsel on the last trial of this action produced as a witness Mr. Ayres, counsel for the plaintiff Savage, to prove certain parts of the testimony given by Mr. Ireland on the Savage trial, and part of it was practically read to the jury. The method of the admission of this evidence was not error, as it was evidence of a statement made by Ireland, The defendant’s counsel offered to read the rest of Ireland’s testimony, and the plaintiff .objected, but the court ruled that the defendant was entitled to read “any portion of this testimony, or all of it, if necessary for that purpose, that tends to qualify or explain that which has been already introduced”; and additional portions of the evidence were read by the defendant, without specific objection by the plaintiff's counsel, who subsequently read other portions. The testimony was properly admitted, and forms part of the evidence upon which the appeal is to be decided. Mr. Ireland testified that he employed Mr. Behrens, an architect, to draw the plans and specifications of the building in question; that he had known him for several years, and had previously employed him on two buildings, the work of which was satisfactory to the defendant; that before he employed him on previous work tie asked his carpenter if he knew of a good architect, and the carpenter recommended Behrens; that Behrens told him of several buildings on which he had been engaged for a number of years, and

The next question in order is whether the defendant relied upon, and fairly committed the subject-matter of the building to, the architect. Ireland testified that personally he did not know anything as to the required strength or detail of a building of this size and character; that, when he employed Behrens to prepare plans for the present building, he told him what style of building he wanted, but left all of the details to him; that he intrusted the entire management of the plans and specifications of the building to him, stipulating that it should be of the best materials; and that he relied upon Behrens to give him the best kind of a building. It was also proved that Behrens’ plans were submitted to and approved by the building department, by the defendant’s direction. There is no testimony directly contradicting these facts. The court charged that, the defendant being a layman, it was for the jury to decide “whether or not he was able- to judge of the sufficiency of this foundation, as it appeared to him upon-these plans as they were prepared for him.” But as he employed a competent architect to prepare the plans and specifications, in a matter of which he was ignorant, and committed the matter entirely to him, I think he was not responsible for the errors in the plans of an architect admitted to be •competent and skillful. The submission of this question to the jury, against the objection of the defendant, was therefore legal error. Such is the effect of the previous quotation from the opinion of this -court in the Savage Case, supra. This is not at all in conflict with Pitcher v. Lennon, 12 App. Div. 356 , 42 N. Y. Supp. 156 , where Mr. Justice O’Brien said:

“The only evidence that he.employed an architect at all is the indorsement upon the plans of the name of a firm described as such. For all that appears, the defendant may have known in the first place that the plans contained an illegal feature, or even have directed it. The evidence, at all events, of subsequent knowledge is strong. The case is not the one—to which the defendant’s requests would apply, if at all—of the architect in collaboration with the builder without intervention on the part of the owner. It was the owner, Lennon, who took the plans, and gave them to the builder, and superintended the construction. He thus learned, or should have learned, that the building

was being erected in an illegal manner; and this, as has been said, renders him liable.”

In the case of Fox v. Ireland, 61 N. Y. Supp. 1061 , referred to in the opinion of Mr. Justice HATCH, the learned appellate division of the First department, as 1 read the opinion, assented to the doctrine as to the employment of an architect which we declared in the Savage Case, but placed the reversal of the judgment of nonsuit on the ground that:

“Ireland is not exonerated from liability; it not being shown that he employed a skilled and competent architect, and that he relied upon him both for the preparation of plans and the superintendence and inspection of the work, and that he did not interfere with the architect in the discharge of the duties the latter assumed to perform for the owner. The defendant’s position is defective, in that there is nothing in the record to inform us who Mr. Behrens, the architect, was, or whether he was competent, or what education, knowledge, or experience he had, or what his capacity was to deal with so large and important a subject as the planning and erection of this great building for Mr. Ireland. The owner is called upon to show further that he did not control, direct, or interfere with the architect in any manner. It will not suffice to' say that Mr. Behrens was a skilled architect because Mr. Ireland considered him such, or the architect represented himself to be such, as by signing the plans; nor is it enough for the defendant to say that he relied upon the approval of the plans by the building department as a certificate of capacity or sufficiency of the architect he employed. 'For the want of evidence to show that Mr. Ireland could rightfully rely upon the architect he employed, the judgment and order must be reversed.”

In the case at bar, I think that all the fact's which, according to the opinion of Mr. Justice Patterson, were essential to the defense, were either proved or conceded. This, however, does not entirely dispose'of the question whether the building, as planned, was inherently dangerous and defective. ’It clearly appears that the building which fell was hot constructed in accordance with the original plans, and it is no answer to this that even such plans had no sufficient factor of safety. It is not certain that the building would have fallen suddenly, and in the manner in which it did, if it had been erected according to the plans. Juries cannot be permitted to enter the domain of speculation, and.render verdicts on g state of facts which never existed. ■ The plans called for a concrete foundation, under column 3, 18 inches in thickness. There was evidence tending to show that Behrens assented to a reduction of the thickness of this concrete to 12 inches, and it seems to be conceded that this was a contributing cause to the collapse. But Behrens had no authority from the defendant to give such consent. It was outside his power, and the act was not that of the defendant, for which he is responsible, unless he knew of it or was privy thereto; and there is no evidence of any such knowledge or privity. On the former appeal the court held that" as the contract provided that the work should be done in accordance with the plans and specifications, although it provided that the work should be executed under the direction and to the satisfaction in all respects of Behrens, or other architects of the owner, yet this provision did not authorize the architect to modify the plan, or relieve the contractor from doing the work called for by the contract, and that for

I have not lost sight of the plaintiff’s contention that the plans were in violation of the building law. If the building had been erected in exact accordance with these plans, such contention might foe taken into consideration, but Behrens’ unauthorized change of the original plan takes that question out of the case; for it seems to have been conceded by both parties on the trial, and the trial was conducted on the theory, that the accident resulted from placing a 12-inch concrete foundation for column Ho. 3 partly on undisturbed land, and partly on the wall of an old cesspool or cistern, which formed the fulcrum to a lever constituted by the concrete, inasmuch as the undisturbed earth was likely to settle more or less under the great pressure transmitted through the column, while the wall of the cistern afforded greater resistance, and that this greater strain on the part supported by the earth caused a break in the concrete, resulting in the sudden collapse of the structure above it. It is also to be remembered that a witness for the plaintiff (an architect connected with the building department) testified that Behrens’ plans were examined by the experts of that department, and approved as plans of a building capable of carrying the loads that would be imposed upon it. Thus, we have this condition shown by the evidence: An architect admitted by the plaintiff’s counsel to have been competent and skillful; plans prepared by such architect,’ and examined and approved by the building department, to which the charter of the city confided that public duty; and testimony from an architect Connected with the department to the effect that “if the building had been constructed according to the plans and specifications filed in the department of buildings, and approved by the superintendent of buildings, the building would not have collapsed.” Two of the plaintiff’s witnesses testified that, if the building had befen constructed according to the original plans, it would not have collapsed as and when it did, though it eventually might have “failed” gradually, and that the real cause of the collapse was the laying of the concrete over the cistern. In other words, not the original plans of the architect, but the change from such plans, and the work of the contractors in building, were the causes of the collapse. It would seem that a layman could hardly be expected to possess technical knowledge of what is proper for the construction of a building of this character, and that the defendant was justified in relying upon the judgment of his architect and the approval of the building department, unless it could be said that the plan was so utterly and inherently defective as to be dangerous to the commonest observation; and there is no evidence to support any such proposition. This disposes of the first of the two grounds upon which, as stated by the plaintiff’s counsel, the case was submitted to the jury; for the defendant, having employed an architect who was conceded on the trial to have been competent and skillful, and to whom he. committed the entire subject, cannot be held guilty of negligence in contracting for the construction of the building planned by such architect, unless he knew or should have known that it was inherently defective.

“Do all the digging * * * in time so as not to delay the other mechanics, * * * agreeably to the drawings and specifications made by Chas. R Behrens, Arch’t, * * * within the time aforesaid, in a good, workmanlike, and substantial manner, to the satisfaction and under the direction of the said architect.”

The defendant’s contract with Parker, the builder, provided that:

“No Concrete shall be laid in trenches until same has been examined by the architect, as concrete must not be laid on a disturbed bottom. No finished concrete work will be accepted unless same has been approved by the architect before being covered over or built upon.”

The testimony of the defendant, taken on the Savage trial, and read on the present trial, was to the effect that he employed Behrens as an architect, and to “superintend the work of all the contractors, * * both as to construction and material,” and that defendant “intrusted the entire management to the architect, * * * of the construction of this building, * * * stipulating that it should be of the best material.” On examination by his own counsel, the defendant explained that in using the word “superintend” he gave Behrens no other authority than that of an architect, as specified in the contract. On the former appeal this court did not specifically decide the extent of the responsibility of the defendant for the failure of the architect to supervise the work, and to see that there was undisturbed bottom on which the foundation of column No. 3 was to rest before the concrete work was laid down; but I cannot draw any distinction between that part of the architect’s duty and his duty to provide proper plans. If failure on the part of an architect to prepare proper and sufficient plans cannot be imputed to his principal as negligence, by the same reasoning the failure of the architect to see that there was an undisturbed bottom upon which column No. 3 was to rest cannot be imputed to the defendant as negligence. Each duty was confided to Behrens, by reason of his being an architect, and by the same contract. The defendant’s undisputed testimony shows that he was a layman, as to matters of this kind, and knew nothing of the defects of building, or of the sustaining weight of concrete or structural erections. Indeed, it may be said that for this reason the profession of architects exists. On the entire evidence, there can be no question that the accident resulted from the negligence either of one or more of the contractors, or of the architect, and for their negligence the defendant is not responsible. In the recent case of Berg v. Parsons, 156 N. Y. 109 , 115, 50 N. E. 958 , 41 L. R. A. 393 , the court had occasion to consider the doctrine of respondeat superior, and, recognizing the general rule to be that “where the relation of master and servant, or principal and agent, does not exist, but an injury results from negligence in the performance of work by. a contractor, the party with whom he contracts is not responsible for his negligence or that of his servants,” used the following language:

“There are certain exceptional cases where a person, employing a contractor is liable, which, briefly stated, are: Where the employer personally interferes

with the work, and the acts performed by him occasion the injury; where the thing contracted to be done is unlawful; where the acts performed create a public nuisance; and where an employer is bound by a statute to do a thing efficiently, and an injury results from its inefficiency.”

I think these constitute the only exceptions to the general rule. There is in the case at bar no evidence which brings it within any of these exceptions; for there is no evidence that the defendant did personally interfere with the work, or that the structure was unlawful or a public nuisance, or that the defendant was bound by any statute to erect the building otherwise than in the manner provided for in the original plans.

It is due to the learned judge before whom the trial was had to say that a motion for the dismissal of the complaint was made at the close of the evidence, and that the decision of the question was reserved until after the verdict, on the theory that the case came within the provision of section 1189 of the Code of Civil Procedure. Subsequently to the verdict, in an unreported opinion, which is hereto appended as a note, the court granted the motion for the dismissal of the complaint, but afterwards came to the conclusion that section 1189 was not applicable to cases where, as in the present, a general verdict had been rendered, and thereupon, with the consent of the defendant’s counsel, vacated "the order dismissing the complaint.

The conclusions stated above render unnecessary the examination of any other question raised on this appeal. I think that the judgment should be reversed..

Note by GAEEETTSON, J. I am not satisfied with the result in this case. My submission of the case to the jury was largely against my own judgment as to what disposition ought to have been made of it on the facts, and under the law applicable. As the case was presented to the court after the withdrawal of one of the grounds by Mr. Patterson, there seemed to be but two questions left upon which the liability of this defendant could be predicated; and one of those, I must say, I regard as being of extremely doubtful value. The only one that impressed me with any considerable degree of force at the time was that with reference to the duty of the defendant to see to it that a proper bed was found; that the ground was prepared in such a way that the contractor for the construction of the building could have, when he commenced his work, that which was required and called for by the plans and specifications,—the excavation having been made by an independent contractor. I think that, so far as the plan of construction is concerned, which was the first ground, as to whether there was an inherent defect in the plan, so that it was dangerous to build from the plan, the defendant did all that, under the law, he was required to do, or could be expected to do, when he selected a skillful and competent architect, and when he employed ■ and made his contract with a builder who was reputable and well qualified to perform the particular work. Now, as to the foundation being placed upon an undisturbed bottom, the owner had provided in his plan and specifications, and in the contract, for just that. He had not specified the construction of the building upon anything but an undisturbed bottom, and he had committed the determination of whether that foundation was to be constructed upon an undisturbed bottom to his architect; and, if there was any violation of duty, it was a violation of duty in this regard, by the builder and by the architect, of matters and things which had been completely and entirely committed to their charge, or provided for by the contract, and it seems to me that the defendant could not have done anything more than he did in that regard. It could not be expected of him, under the circumstances, any more than it could be expected of any other owner, to be upon the ground at the time that this work was commenced, and see that it was performed according to the terms of the contract and according to