#### J. P. EMBLER, Administrator, and B. F. STATON, Administrator, v. GLOUCESTER LUMBER COMPANY.

(Filed 23 December, 1914.)

1. Contracts — Independent Contractor — Pleadings—Issues—Burden of Proof.

When the defense of independent contractor is relied upon, it must be alleged in the answer, with the burden of proof upon the defendant.

2. Contracts — Parol—Independent Contractor — Evidence, Conflicting — Trials —Questions for Jury.

Where the entire contract is in writing, the question of independent contractor is a question of law arising from the interpretation of its terms; but where the contract relied on rests in parol,- and the evidence • of its terms is conflicting" in that respect, the question of independent contractor is one for the determination of .the jury, under proper instructions from the court.

3. Same — Burden of Proof — Supervision by Owner.

, The defendant corporation contracted by parol for the erection of a dry-kiln, and in an action to recover damages for an injury received by an employee from a wall thereof upon which he was at work falling upon him, there was evidence tending to show that it resulted from an improper foundation; that the blue-prints furnished the contractor showed that the foundations were to have been made of concrete, but were changed to Ijrick by the order of the defendant under objection by the contractor that it would be dangerous, with further evidence that the *458officers of the defendant frequently inspected the 'work and gave occasional orders respecting it. There was evidence on the defendant’s behalf that the erection of the dry-kiln was to be done by an independent contractor. Held, the burden of proof was on the defendant to show that the work was to have been done under an independent contract, which could hot be passed upon by the court under the conflicting evidence, but was for the determination of the jury. The term “independent contractor” defined by Walker, J.

4. Contracts — Independent Contractor — Dangerous Work — Defenses.

The defense of independent contractor cannot be made available when the work to be done under the terms of the contract is so intrinsically or inherently dangerous that it will necessarily or probably cause injury to others.

5. Contracts — Independent Contractor — Acts of Owner — Negligence—Proximate Cause.

Where the defendant has contracted with another for the erection of a dry-kiln with a concrete foundation, and, under his orders, the employer has changed the foundation to brick, which change has caused the wall thereof to fall and injure plaintiff, while engaged in laying brick in its erection, the defense of independent contractor is not available, for the negligent act of the owner, in causing the change to be made, was the proximate cause of the injury, for which he is directly liable.

6. Measure of Damages — Trials—Instructions.

The charge of the court upon the measure of damages for a personal injury received by the plaintiff is approved upon the facts in this case under authority of Johnston v. R. R., 163 N. 0., 461, and that line of cases.

Appeal by defendant from Webb, J., at October Term, 1914, of HeN-DERSON.

These were civil actions consolidated and tried by consent at September Term, 1914, of the Superior Court of Henderson County. The actions were brought for the purpose of recovering damages for the alleged negligent killing of plaintiffs’ intestates, which was caused by the falling of the wall of a dry-kiln of the defendant. It was admitted in the answer and also upon the trial that the intestates were killed by the falling of the wall. The defendant denied the allegations of negligence, pleaded assumption of risks, and alleged that the intestates were employees of Jesse Y. Allen, an independent contractor. The following is the verdict of the jury:

1. Were the plaintiffs’ intestates, Fred Embler and Carlton Miller, ih the employ of J. Y. Allen, an independent contractor, as alleged by the defendant’s answer? Answer: “No.”

2. Were the plaintiffs’ intestates, Fred Embler and Carlton Miller,- in the employ of the defendant Gloucester Lumber Company at the time alleged in the complaint? Answer: “Yes.”

*4593. Were tbe plaintiffs’ intestates,-Fred Embler and Carlton Miller, killed by tbe negligence of tbe defendant Gloucester Lumber Company, as alleged in tbe complaint? Answer: “Yes.”

4. Wbat damage, if any, is tbe plaintiff J. P. Embler, administrator of Fred Embler, entitled to recover of tbe defendant Gloucester Lumber Company? Answer: “$3,645.83.”

5. Wbat damage, if any, is tbe plaintiff B. E. Staton, administrator of Carlton Miller, entitled to recover of the' defendant Gloucester Lumber Company? Answer: “$3,-253.43.”

Judgment for tbe plaintiffs was entered tbereon, and defendant appealed to tbis Court.

Staton <& Rector and Smith & Shipman for plaintiffs.

Martin, Rollins & Wright for defendant.

Walker, J.,

after stating tbe case: The real and essential question in tbis case is whether Jesse Y. Allen, at tbe time of tbe accident which caused tbe death of plaintiffs’ intestates, was an independent contractor and chargeable with sole responsibility therefor.

Tbe defendant requested that several instructions be given to tbe jury which in substance were equivalent to a motion to nonsuit or a peremptory direction to find for tbe defendant. We will so consider them, without reproducing them severally here. If there was evidence that Jesse Y. Allen was not an independent contractor, tbe instructions should not have been givenj and, therefore, were properly refused by tbe court.

Tbe evidence of both parties tended to show that Jesse Y. Allen entered into a verbal contract with tbe defendant, through J. S. Silver-stein, its president and general manager, to lay tbe brick in tbe walls of tbe dry-kiln at either $3.25 or $2.75 per thousand, tbe evidence as to tbe amount being conflicting. Allen was to look after tbe employment of bands to work on tbe job, tbe wages paid them to be deducted from tbe contract price for laying tbe brick. Tbe defendant was to furnish all of tbe material for tbe construction of tbe walls. It was also shown by tbe evidence of both parties that tbe defendant turned over to Allen a blue-print containing plans and specifications for tbe construction of tbe walls of tbe kiln. These plans and specifications provided, among other things, for a concrete foundation for tbe walls of said kiln, the same to be 24 inches wide and 18 inches high, but did not provide for pilasters to be put on tbe walls.

Plaintiffs’ witness J. Y. Allen testified that tbe base was to be of concrete,. under the ground, but was built of brick under tbe orders of Sil-verstein. He told Silverstein that be noticed on tbe blue-print that it was to be a concrete base, and that it ought to go in under tbe building, and be, Silverstein, said, “Put in brick.” He also testified that Silver-*460.stein ordered bim to put up some- pilasters on tbe sides of tbe walls. That Silverstein, or defendant’s superintendent, were around looking after tbe work a number of times. Mr. Bowman, wbo was employed by tbe defendant and bad charge of its office, was around two or three times •'every day. That in paying tbe bands they signed Mr. Silverstein’s payroll, and tbe witness gave some orders. That tbe blue-print showed tbe bricks were to be laid on a cement foundation, but Mr. Silverstein •changed tbe foundation and decided to put in a brick foundation instead, and ordered Allen to do so. That Silverstein was present a number of times and gave orders in regard to tbe construction of tbe walls.

Herbert Allen, a witness for plaintiffs, testified: "When they went there to work, Mr. Silverstein stated to them to go ahead and put in a 'brick foundation instead of concrete. Witness’s brother told Mr. Silver-,stein that tbe concrete base ought to go in. Mr. Silverstein said tbe brick would do, and Jesse said, “You are tbe doctor; we will put it in that way if you say so.” That while be was at work on this building, be •saw Mi'. Bowman there every day, once or twice a day. Mr. Bowman was giving orders about one thing and another. He laid out some work there; placed off tbe rods that were elevated for tbe track to go through the dry-kiln; that be followed bis directions. He saw Mr. Silverstein there several times during the progress of tbe work. He came to see bow it was getting along and gave orders; that be got bis pay by signing Mr. Silverstein’s pay-roll, and was paid off in checks of tbe Gloucester Lumber Company; that tbe other laborers got their pay in tbe same manner.”

Sibley Allen, a witness for tbe plaintiffs, testified: “I beard a conversation between Mr. Silverstein and Mr. Bowman and my brother; be would come around and discuss what to do and tell bim to go ahead and put it in like be said.”

As tbe intestates were killed by the falling of the walls of tbe kiln which was then being constructed' for tbe defendant, it would be liable in damages to tbe plaintiffs, provided there was negligence which proximately caused tbe wall to fall. If there is anything, then, that relieves •the defendant of this liability, it is, under tbe ordinary rule of law, incumbent upon it to so allege and prove, as this is entirely defensive matter. It follows that, as to tbe defense that the work was being done by an independent contractor, the burden was upon tbe defendant to •show that fact. 26 Cyc., pp. 1573-4; Midgett v. Mfg. Co., 150 N. C., 333; Sutton v. Lyon, 156 N. C., 3 ; Mitchell v. Whitlock, 121 N. C., 166; Cook v. Guirkin, 119 N. C., 13.

This Court has held that in the trial of causes in which the defendant ¡seeks to avoid liability upon the ground that the party in charge of tbe work is an independent contractor, it is proper “to submit the question *461raised by the contention of the defendant in this respect to the jury in a separate issue or question. Young v. Lumber Co., 147 N. C., 35. As this issue is raised by the defendant in its answers, the burden is upon it to sustain its allegation by the greater weight of the evidence. It is elementary that the burden of proof rests upon the party having the affirmative of the issue, and if a defendant, in cases of this kind, alleges an independent contract, the facts pertaining thereto being peculiarly within his knowledge, the law and justice require that he establish the alleged contract to the satisfaction of the jury by the greater weight of the evidence. It would be unfair, and work a hardship, if the burden should be put upon the plaintiff of disproving an alleged contract to which he is an entire stranger.

It is well settled that when the court is asked to give a peremptory instruction to the jury, requiring them to find for one of the parties, the other is entitled to have the evidence considered in the light most favorable to him (Hodges v. R. R., 122 N. C., 992; Board of Education v. Makeley, 139 N. C., 31), which principle has been approved in many subsequent eases. Denny v. Burlington, 155 N. C., 33 (an independent contractor case).

Whether Jesse V. Allen was an independent contractor, for whose negligence the defendant was not responsible to the plaintiffs, presented an issue of fact which was properly left to the jury for decision, as the court could not, in the state of the evidence, pass upon this question as One of law. There was conflicting evidence which clearly made a case for the jury. If the terms of the contract had been admitted or otherwise established, their meaning would become a question of law; but as this contract was in parol and its terms were not settled, and there was conflicting evidence as to what was said and done, it was naturally and legally the function of the jury to draw the necessary deductions therefrom, under proper instructions from the court as to what would constitute Jesse Y. Allen an independent contractor, for whose acts of negligence defendant would not be responsible, with reference, of course, to the peculiar circumstances. An independent contractor is said to be one who, exercising an independent employment, contracts to do a piece of work according to his own judgment and methods, and without being subject to his employer, except as to the result of the work, and who has the right to employ and direct the action of the workmen, independently of such employer and freed from any superior authority in him to say how the specified work shall be done or what the laborers shall do as it progresses. 1 Bouvier’s Law Dict., p. 1011; Casement v. Brown, 148 U. S., 615 (37 L. Ed., 582). The rule, however, is subject to this qualification: “Where an obstruction or defect which occasions an injury results directly from the acts which an independent contractor agreed *462and was authorized to do, the person who employs the contractor and authorizes him to do these acts is liable to the injured party; but where the obstruction or defect caused or created is purely collateral to the work contracted to be done, and is entirely the result of the wrongful acts of the contractor or his workmen, the rule is that the employer is not liable, and in such case the contractor will be liable for his own negligent acts.” We thus defined the relation in Craft v. Lumber Co., 132 N. C., at p. 158. “Where the contract is for something that may lawfully be doné, and is proper in its terms, and there has been no negligence in selecting a suitable person to contract with in respect to it, and no general control is reserved either in respect to the manner of doing the work or the agents to be employed in doing it, and the person for whom the work is to be done is interested only in the ultimate result of the work and not in the several steps as it'progresses, the latter is not liable to third persons for the negligence of the contractor as his master. Cooley on Torts (2 Ed.), sec. 548, p. 646. The principle as thus stated, and which we believe to be the correct one, has been approved and applied by this Court in Waters v. Lumber Co., 115 N. C., 652.” But that was said with strict reference to the particular facts of the case then being decided, and we had no occasion to state the rulé where the work to be done is intrinsically or inherently dangerous. An employer, of course, cannot authorize a dangerous piece of work to be done, or work the doing of which according to the contract of employment will necessarily or probably be dangerous and injurious to others, for this would be to participate in the commission of the tort, or to authorize the doing of it. The employer is, therefore, liable if injury results from work as he has authorized it to be done. Robbins v. Chicago, 4 Wall. (U. S.), 657, 679 (18 L. Ed., 527); Water Co. v. Ware, 16 Wall., 566, 576 (21 L. Ed., 485); Ph. etc., R. Co. v. Ph., etc., Steam Towboat Co., 23 How. (U. S.), 209 (16 L. Ed., 433); Chicago v. Robbins, 2 Black (U. S.), 418 (17 L. Ed., 298). In Davis v. Summerfield, 133 N. C., 325, this principle was applied, citing and quoting from R. R. v. Moore, 88 Md., 352: “Even if the relation of principal and agent or master and servant does not, strictly speaking, exist, yet the person for whom the work is done may still be liable if the injury is such as might have been anticipated by him as a probable consequence of the work let out to the contractor, or if it be of such character as must result in creating a nuisance, on if he owes a duty to third persons or the public in the execution of the work.” When one contracts to do and deliver certain specific work, which is not unlawful, and the manner of the doing of which, including the employment, payment,' and control of the labor, is left entirely to him, he is an independent contractor, for whose acts and omissions in the execution of such contract the other contracting party is not liable, since the doc*463trine of respondeat superior bas no application where tbe employee represents tbe employer only as to tbe lawful purpose of tbe contract, but does not represent bim in tbe means by wbicb that purpose is to be accomplished. Tbe accepted doctrine is that in cases where tbe essential object of an agreement is tbe performance of work, tbe relation of master and servant will not be predicated, as between tbe party for whose benefit tbe work is to be done, and tbe party who is to do tbe work, unless tbe former bas retained tbe right to exercise control over tbe latter in respect to tbe manner in wbicb tbe work is to be executed. Tbe proprietor may make himself liable by retaining tbe right to direct and control tbe time and manner of executing tbe work or by interfering with tbe contractor and assuming control of tbe work, or of some part of it, so that tbe relation of master and servant arises, or so that an injury ensues wbicb is traceable to bis interference. But merely taking steps to see that tbe contractor carries out bis agreement, as having tbe work supervised by an architect or superintendent, does not make tbe employer liable, nor does -reserving tbe right to dismiss incompetent workmen. Tbe following authorities sustain these propositions: Denny v. Burlington, 155 N. C., 33; Robineux v. Herbert, 118 La., 1089 (12 L. R. A. (N. S.), 632); Richmond v. Sitterding, 101 Va., 354 (65 L. R. A., 447, and notes); 1 Lawson Rights, Remedies, and Practice, see. 299. The last cited authority states, in an excellent note upon this subject, that if tbe owner of a building deals with tbe contractors, with reference to the manner of doing tbe work, in such a way “that in doing any particular act they are obeying tbe directions .of tbe owner, if .that act is negligent and damage ensues, be is liable. In such a case it is bis duty to see that what is done under bis special orders is not negligently done,” citing Hefferman v. Benkard, 1 Robt., 436. Tbe act.of tbe defendant in interfering with tbe work and causing tbe substitution of brick for cement, wbicb bad been specified as tbe proper material, brings it under tbe condemnation of tbe law just stated. If we read tbe verdict in connection with tbe evidence,- and tbe charge, wbicb was free from erroiy we see that tbe jury have found that defendant was guilty of this interference, and to this extent, at least, be took personal charge of the work and thereby weakened tbe foundation of tbe wall, so that it fell and killed tbe intestate. This conduct on bis part made bim tbe master and Jesse Y. Allen bis servant, and for tbe acts of tbe latter in this respect be bas become responsible. But tbe case is still stronger against it, for by thus reserving, and actually assuming, control and causing to be done this negligent-act, the injury is directly traceable to it, and tbe law refers tbe injury to tbe wrongful act or tort of tbe defendant as tbe direct, efficient, and proximate cause thereof. Its responsibility is so clear that if there was *464any error in regard to tbe application of tbe principle res ipsa, loquitur, it would be harmless and unprejudicial, as it could not have affected tbe result.

There are several other exceptions, but they all converge to this one point, "Was Jesse Y. Allen an independent contractor? If not, the jury were manifestly right, upon the evidence, when they found that defendant is liable for the falling of the wall. This really covers the entire case, and it would be idle to give the other exceptions a separate study and discussion.

The charge as to damages was correct. Mendenhall v. R. R., 123 N. C., 275; Carter v. R. R., 139 N. C., 499; Poe v. R. R., 141 N. C., 525; Gerringer v. R. R., 146 N. C., 32; Fry v. R. R., 159 N. C., 357, 362 ; Johnson v. R. R., 163 N. C., 431, 451.

After a careful review of the whole case, no error has been discovered.

No error.