#### A. D. Fell, Administrator, Plaintiff in Error, v. Chicago Building & Special Construction Company and Oscar S. Eiger, Defendants in Error.

Gen. No. 19,665.

(Not to he reported in full.)

Error to the Circuit Court of Cook county; the Hon. Charles M. Walker, Judge, presiding. Heard in the Branch Appellate Court at the October term, 1913.

Affirmed.

Opinion filed June 9, 1914.

Statement of the Case.

Action by A. D. Fell, administrator of the estate of Mathias 0. Fell, deceased, against Chicago Building & 'Special Construction Company and Oscar S. Eiger to recover for the death of deceased alleged to have been occasioned by the negligence of the defendants.

A similar suit was also brought by the same plaintiff as administrator of the estate of Josephine M. Fell against the same defendants. (See Fell v. Chicago Building & Special Construction Co., p. 288, post.) The cases were tried together in the Circuit Court. In each of the cases there was a verdict for plaintiff— as administrator , of the estate of Josephine M. Fell in the sum of $7,500, and as administrator of the estate of Mathias 0. Fell in the sum of $8,500 against the de*287fendant Building Company, upon each of which verdicts a judgment was rendered. There was also a verdict in each case by direction of the court in favor of defendant Eiger. From judgments for costs in the two cases in favor of Eiger, writs of error are prosecuted.

Abstract of the Decision.

1. Master and servant, § 856 * —rule as to determining whether builder is independent contractor. The question whether a building company is an independent contractor is to be determined by the court on its construction of the contract between the building company and the owner.

2. Master and servant, § 856*—when building company is independent contractor. A building company, held to be an independent contractor where the contract provided that the company should provide all materials and perform all the work mentioned in the specifications and shown on the drawings prepared by an architect for the work complete on a two-story and basement building, the contract naming the architect as “superintendent of the work for the completion of the building,” and enumerating his duties with the usual provisions relationg thereto.

3. Master and servant, § 866"—admissibility of evidence. In an action against a building contractor and the owner to recover for the death of a child caused by the falling of a terra cotta cornice, where plaintiff did not attempt to prove on the main case that there *288was any fault in the plans or specifications but relied wholly upon the doctrine or res ipsa loquitur, refusal to permit plaintiff to show on rebuttal, for the purpose of proving the owner’s liability that an employe or superintendent under the architect approved the plans adopted, held not error where no attempt was made to show that the change in plans was not made upon the written order of the architect as required by the contract, and the evidence did not tend to rebut anything brought out in defendants case.

*287The death of the two children was caused by the falling of a terra cotta cornice on a building being constructed for the defendant Eiger by the defendant Building Company. That the accident was due to faulty construction was abundantly proved. The principal question presented by the writs of error is whether the trial judge correctly held that the Building Company was an independent contractor.

Bither, Goff & Francis, for plaintiff in error.

Adler & Lederer, for defendants in error.

*

See Illinois Notes Digest, Vols XI to XV, and Cumulative Quarterly, same topic and section number.

Mr. Justice Clark

delivered the opinion of the court.