Schmidlin v. Alta Planing Mill Co.

HENSHAW, J.

William Garland, owner of the land, entered into a contract with A. Pantages, to erect thereon a building to be used as a theater, Pantages agreeing to lease this building from the owner. In pursuance of this agreement Garland entered into a contract with the Alta Planing Mill Company, a corporation, to construct the building. This contract called upon the Alta Planing Mill Company to do all of the work in the matter of the construction of the building " excepting the plumbing, heating, ventilation, electrical works, decoration and the fitting up of the stage and elevators, which will be let under separate contracts.” The work of the Alta Planing Mill Company was substantially completed, and other independent contractors were in and about the building in the performance of their various contracts. Says the architect’s superintendent: ‘‘Independent contractors were working there together in the way all buildings are built. ’ ’ Pantages secured permission from the owner to have certain signs painted on the building. He employed as an independent contractor George D. Erskine to do this work. Erskine sent two of his men to paint signs on a dead wall of the building. There was a five-foot passageway between the theater building and the building next adjoining. This adjoining building was about two stories high. The painters carried their apparatus to the top of this building and there rigged their scaffold. They placed the hooks supporting the tackle on top of the Pantages building and, standing on the roof of the adjoining building, proceeded to hoist their scaffold. On this scaffold and unsecured they placed a bucket of paint. While hauling up the scaffold into place the side of it caught against the wall, tilting it, and throwing off the bucket of paint, which struck and injured plaintiff in the passageway below, at work preparing that passageway for a cement floor. Plaintiff was an employee of the Alta Planing

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Mill Company. He brought his action against the owner, Garland, as to whom it was dismissed, and no question is raised over the dismissal; against the Alta Planing Mill Company, in whose favor a nonsuit was granted; against A. Pantages, in whose favor a nonsuit was also granted; against George D. Erskine, against whom he recovered judgment. His appeal is directed to the errors of the court in granting the nonsuits.

As to the defendant A. Pantages, it is undisputed that he had employed Erskine as an independent contractor, and Erskine, as has been said, has suffered judgment in favor of plaintiff. Appellant recognizes the general rule that exonerates the employer of an independent contractor and fixes the responsibility upon the contractor himself, but insists that his case comes under the exception to the rule which exception sustains an action against the employer under the doctrine of