THE J.
J.
(DEFEND- RESPONDENTS. AN
..........................
APPEAL FROM THE OF APPEAL FOR MANITOBA. the judgment of the trial judge, Chief Justice Mathers, which judgment was affirmed by the Court of Appeal for Manitoba, and I would dismiss this appeal for the reasons given in that judgment.
J.-I agree that this appeal should be dismissed with costs.
J.-For the reasons given by Chief Justice Mathers in delivering judgment in the Court of King's Bench dismissing the action, and which judgment was concurred in by the Court of Appeal, I am of Opinion that this appeal should be dismissed with costs.
J.-This is an action brought by appellant against contractors for injuries caused to him by the negligence of a sub-contractor in the execution of a work requiring the use of explosives of a highly dangerous character in a place and under such circumstances that the subletting could not in law be held to have the effect of discharging the obligation to others from the observance of a duty to see that the said work was done with due care.
The appellant claims that the contractors and subcontractors cannot be held, by reason of the negligence complained of, to have been joint tort-feasors. He claims each to have been severally liable. So is each tort-feasor in any case where a joint tort has been committed.
The negligent execution of the work is the basis of the right of action and all implicated therein are jointly liable.
It is admitted in the stated ease that "the injury complained of in both actions and the cause of such injury are identical."
It is clear also that the legal duty out of which springs the obligation to use that due care which would have avoided the cause of such injury is one and only one and not necessarily to be accomplished by the hands of either contractor or sub-contractor. It seems clear error to say that a declaration could not be properly framed alleging the duty as joint and the responsibility joint and ending with a prayer for relief against them jointly.
It is idle to allege that because the evidence relative to the part each had taken of necessity must be different can make any difference in the legal substance of the cause of action or legal consequences thereof.
-- In every case of joint tort the identity of and relative parts taken by each defendant and the connective evidence slieving how each of them is to be held jointly liable with the other, clearly needs different statements or pieces of evidence much of which may be given as to one without naming the other.
I assume as admitted each was liable, and pass no opinion upon the qnestion of whether the contractor in fact fell within the class of cases wherein lie cannot free himself from liability by means of a sub-contract. I assume that to have been so as common ground between the parties.
I think the appeal must be dismissed with costs. J.-Te plaintiff appeals front the judgment of the Court of Appeal for Manitoba affirming the judgment of Matlhers C.J., dismissing this action on the ground that the defendants, principal contractors, were joint tort-feasors with their sub-contractors against whom the plaintiff recovered judgment in a former action.
In support of his contention that the cause of action against the sub-cntractors differs from that against the principal contractors, Mr. (alt ingeniously nrged that while in the former action it w-as not, in the present action it is, necessary for the plaintiff to aver that the work, which the sub-contractors were engaged to perform, was necessarily attended with risk. The negligence in respect of which the plaintiff recovered in his action against the sub-contractors admittedly gave him a cause of action against the defend- J.
ants as well. That is the case only because that negligence consisted in failure to take the care called for by what was in the circumstances the inherently dangerous nature of the work.
The moment this fact is stated the identity of the plaintiff's cause of action against both the principal contractors and their subcontractors seems to me to be established.
In order to prove his charge of negligence against either lie must establish breach of a duty owing to him to take care; that duty er hypothesi in each case alike arises out of and depends upon the fact that the very work which the sub-contractors were engaged to do was necessarily attended with risk; therefore in both cases an allegation of actionable negligence implies and involves the averment that the work was inherently dangerous and that it for that reason cast upon the defendants, whether contractors or sub-con-. tractors, the duty to take precautions which they omitted and which, if taken, would have prevented injury to the plaintiff. It is apparent that although a formal and explicit statement of the inherently dangerous character of the work may have been unnecessary in the action against the sub-contractors it was so only because this averment was implied in the charge that they were negligent or in the allegation that it was their duty to take the omitted precautions. Another ingenious suggestion is that the duty. of the sub-contractors was themselves to take due care, whereas that of the principal contractors was to see that the sub-contractors took such care and therefore that the cause of action against the former differs from that against the latter.
It is only necessary to point out that the same distinction exists in fact, if not in theory, between the responsibility of the master and that of the servant between the duty of the principal and that of the agent.
Yet where such a tort as is here complained of has been committed by a servant or agent, that the master or the principal respectively is jointly liable, and in fact a joint tort-feasor with his servant or agent admits of no doubt.
While a sub-contractor is not, even in carrying out work necessarily attended with risk, the alter ego of his principal contractor so as to make the latter liable for collateral negligence of the forner, as he would be if the relation between them were that of master and servant, on the other hand where the work undertaken by a sub-contractor involves a duty on the part of the contractor from responsibility for the performance of which he cannot escape by delegation, the sub-contractor is in regard to that duty so identified with the principal contractor that his failure to perform it is the failure of the principal contractor himself. Quoad that duty he is in fact the alter ego of the principal contractor.
In my opinion the present defendants and their sub-contractors were joint tort-feasors against whom the plaintiff has an identical cause of action and his judgment recovered against the sub-contractors is a complete answer to this action.
The appeal therefore fails and should be dismissed with costs.
Appeal dismisscd with costs.