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§ 3. Necessity of showing that the em- possible exceptions referred to in the

ployer had notice of the dangerous second and third paragraphs of $ 2, conditions which caused the injury

the imputation of liability was ascomplained of.

sumed to be conditional upon the proAn examination of the cases in duction of evidence that the employer which claims have been held to be had notice, actual or constructive, of enforceable under the general doc- the existence of the conditions which trine (see preceding section) will caused the injury complained of. Some show that, in all of them, with the affirmative authorities for this rule are plete the voyage.

The defendant's which the law attaches to the exercise president and secretary went to the of the control, ‘and the mere fact that harbor a few days afterwards, and the dangerous conditions which cause took possession of the barge and re- the injury were originally created by moved everything of value from it, in- the negligence or other tortious act cluding its anchor. The company thus of a contractor will not afford him became responsible for its secure any protection if he permits them to mooring, and tied it with three light continue after it is in his power to lines to piles on the beach. It after- remove them.' 14 R. C. L. 66. While ward engaged one C. to take the barge the barge laid (sic) upon the beach from the place where it was beached in Yaquina bay, defendant owed a to another part of the harbor, but he duty to plaintiff, and others in like abandoned the undertaking without situation, to exercise reasonable care materially changing the position of to secure and moor the barge in such the barge, and left it moored substan- a manner that it would not be carried tially as it was when he was employed away by ordinary wind and tides. to move it, and promptly notified de- Defendant did not employ Copeland fendant of his action. Upon receiv- to safely secure and moor the barge ing this notice from C., that he was no in the position it occupied on the longer looking after the barge, the beach, but, if it had, the barge was so defendant's officers dismissed the mat- situated that it was liable to shift its ter from their minds; they made no position and become dangerous to the effort to ascertain whether the barge property of others and defendant was safely secured and moored, and could not, in such circumstances, retook no precautions to prevent the lieve itself of the duty to exercise barge from being carried away by the reasonable care to safely moor the action of winds and tides. More than barge by employing an independent a week afterward, a period which, in contractor. Where a party is under the opinion of the court was ample a duty to the public to so care for to have enabled the defendant to dis- property owned by him that it will charge the duty which devolved upon not injure the property of others, that it, of ascertaining what was reasonably duty is absolute, and cannot be delerequired to make the barge safe, and gated to an independent contractor. taking the necessary precautions, it

The evidence not only does floated at high tide, and, breaking not show that responsibility for the loose from its moorings, drifted out acts of negligence complained of were of the harbor, and was dashed in those of an independent contractor, pieces on the shore of the ocean. One but it established as a matter of law of the sections was then driven by that the responsibility was that of the wind and waves against a jetty under defendant, and not that of an indeconstruction at the mouth of the har- pendent contractor.” bor, and broke off several of the * In Tarry v. Ashton (1876) L. R. "bents" of the piling, the result being 1 Q. B. Div. 314, 45 L. J. Q. B. N. S. that the plaintiff's pile driver was 260, 34 L. T. N. S. 97, 24 Week. Rep. 1.hrown into deep water and entirely

581, 19 Eng. Rul. Cas. 4, Blackburn, Tost. Held, that the defendant was

J. (see passage quoted from his judgliable for the injury thus caused. The court said: “As soon as an independ

ment in § 2 note 5, supra), declined to ent contractor transfers the control

lay it down categorically that the emof the subject-matter of the contract

ployer would not be liable for an into the employer, whether upon com

jury caused by a latent defect. But, pletion or stoppage of the work, the having regard to the cases as a whole, employer incurs the responsibility it may, perhaps, be inferred that his referred to in the footnote. The solutely bound to construct in such a rule has, of course, no application manner that the safety of persons beto cases in which the injury com- longing to the class of which the plained of was due to defects in a claimant is a member should not be building which the employer was ab- imperiled. remarks in this connection were made fense relied upon was that no notice ex abundanti cantelá.

of the defect had been given, in acNeumann v. Greenleaf Real Estate cordance with a clause of the city Co. (1898) 73 Mo. App. 326; Chartiers charter providing that it should not be Valley Gas Co. v. Lynch (1888) 118 liable “to any person for damages for Pa. 362, 12 Atl. 435.

injuries caused from streets, ways, In Corliss v. Keown (1910) 207 crossings, bridges, or sidewalks being Mass. 149, 93 N. E. 143, where a de- out of repair, from gross negligence fect in a vehicle caused by the negli- of said corporation, unless the same gence of the mechanic who had re- shall have remained so for ten days paired it caused a horse to run away, after special notice in writing given the evidence warranted the conclusion to the mayor or street commissioner." that neither of the defendants was This provision, however, was held not personally negligent in failing to dis- to be applicable to the case at bar. cover the defect, and that the mechanic The court said: “There may be some "was not acting as the servant of reason in requiring notice to the city either of the defendants in repairing authorities of a defect accruing from the carriage, but was working under ordinary causes, such as the action an independent contract, which gave of floods, the use of the street by him entire control of the business of the public, or, it may be said, from making such repairs as he thought any cause except by the action of the necessary, for which he was to be paid city itself. But in the present case the a reasonable price."

city put a contractor to work upon the In Casey v. Wrought Iron Bridge Co. street, stipulating to have an excava(1905) 114 Mo. App. 47, 89 S. W. 330, tion made which was to be filled with where the plaintiff was injured by the gravel, and, after the work had been fall of a bridge accepted by the county begun and the street had been rencommissioners, who had employed the dered unsafe for travel, discharged defendant to build it, the nonliability the contractor and left the work in an of the county was affirmed on the unfinished condition. This action was ground that the defects in the struc- taken by the very officers to whom the ture could not have been detected charter required the notice of defects by a reasonably careful inspection. to be given. The city is not sought to The contention that the county was be held liable for any injury caused charged with responsibility on the by a defect accruing from any exground that the bridge was a nuisance, trinsic cause whatever, but for having, as being a dangerous obstruction to by its own procurement, made the the highway from the beginning, was street unsafe and knowingly left it in rejected.

that condition." In Goff v. Philadelphia (1906) 214 3 In Goodwin v. Mason (1916) 173 Pa. 172, 63 Atl. 431, where a danger- Jowa, 546, 155 N. W. 966, where the ous depression had remained in a side- action was brought to recover for inwalk about a week after a contractor juries received by a traveler upon had finished the work which created it, whom a defective wall fell as he was notice was held to be imputable to the walking along a street, it was held city.

that the trial judge should not have For other cases involving the ques- instructed the jury that the defendtion of notice to municipalities, see, ants were responsible for the alleged $8 8 and 9 of the monograph in 25 defects only if they were known to deA.L.R. pp. 426 et seq.

fendants, or were such as should have In Houston Isaacks (1887) been known in the exercise of ordi68 Tex. 116, 3 S. W. 693, an accident nary care. The court said: “The dewas caused, a few days after the city fects complained of, if any there were, had dismissed a contractor, by a hole were in the original construction of which he had left in a street which he the building, and not such as must had undertaken to gravel, and the de- have been detected subsequently in its


A discussion of the decisions which thing which is the subject-matter of bear upon the extent of the employer's the contract can be manufactured, obligation to enter upon an active in- constructed, or repaired only by a pervestigation for the purpose of ascer- son possessing special skill, the pertaining whether there are any danger- son who engages him to manufacture, ous defects in the product or results construct, or repair it is entitled, in of the contractor's work does not fall the absence of facts which would put within the scope of this monograph. a prudent man on inquiry, to presume It will be sufficient to state that the that the work has been properly done.* preponderance of authority, in the This doctrine, however, affords no proUnited States at all events, is distinct- tection to the employer, where the ly in favor of the doctrine that, if a work is performed under the direct necessary inspection. For this rea- livered to him, it is in a fair and rea

no question or knowledge was sonable condition for use." involved. Defendants, having con- "If I employ a well-known and structed the building, are presumed to reputable machinist to construct a have known the manner in which this steam engine, and it blows up from was done; and, as they were required bad materials, or unskilful work, I am by the law to see to it that it should not responsible for any injury which be constructed in an ordinarily care- may result, whether to my own servant ful and skilful manner, they were

or a third person. The rule is difcharged with knowledge of any omis- ferent if the machine is made accordsion so to do, and liable for the natural ing to my plan, or if I interfere and consequences following therefrom.” give directions as to the manner of its

4 In Richmond & D. R. Co. v. Elliott construction. The machinist then be(1892) 149 U. S. 266, 37 L. ed. 728, 13 comes my servant, and respondeat Sup. Ct. Rep. 837, where a servant of superior is the rule.” Ardesco Oil Co. a railroad company other than the de- v. Gilson (1869) 63 Pa. 146, 10 Mor. fendant was injured by the explosion Min. Rep. 669. of a locomotive boiler, the general In Anderson v. .

Hays Mfg. Co. principles governing the case were (1903) 207 Pa. 106, 63 L.R.A. 540, 56 thus formulated with reference to the Atl. 345 (hotel injured by explosion of new trial ordered: "If the railroad boiler three months after it had been company after purchasing this engine repaired), the evidence showed that made such reasonable examination as the manager, who was the sole reprewas possible without tearing the sentative of the defendant company, machinery to pieces, and subjected employed skilled and reputable boiler it fully to all the ordinary tests makers to examine and repair a leakwhich are applied for determining ing boiler; that they worked at the the efficiency and strength of com- boiler and made some repairs, and pleted engines, and such examination then reported to the manager that they and tests had disclosed no defect, had performed the work intrusted to it cannot, in an action by one who them; and that the manager was not is a stranger to the company, be an expert, knew nothing of the mechadjudged guilty of negligence be- anism of boilers, and did not examine cause there was a latent defect-one or assist in the actual work of repair. which subsequently caused the de- Held that, under such circumstances, struction of the engine and injury to the company was not liable. The court such party." "With regard to the de- said: "If [the company) selected skilfect in the iron casting, which seems ful and competent mechanics to make to have been revealed by the explo- the repairs deemed necessary by them sion, it may be said that it is not neces- to insure the safety of the boiler, and sarily the duty of a purchaser of ma- they reported that the necessary rechinery, whether simple or compli- pairs had been made, and if aftercated, to tear it to pieces to see if wards, in the interval between the rethere be not some latent defect. If he pairs and the explosion, competent inpurchases from a manufacturer of spectors reported in substance that recognized standing, he is justified in no further repairs were needed, and assuming that in the manufacture if either, without knowledge of deproper care was taken, and that proper fendant, neglected his duty, the detests were made of the different parts fendant is not responsible for that of the machinery, and that, as de- neglect. There was no personal duty supervision of an agent whose techni- him to judge whether it has been percal knowledge is sufficient to enable formed in a satisfactory manner.5 upon it to do that which it could not pairs, and see that the boilers were do at all, and which those whom it em- maintained in safe condition; in this ployed could do well; it would have particular duty he was the defendant. been negligence in defendant if it had Donlan, a mechanic in the employ of undertaken to do that for which it was Munroe & Sons, was sent to this mill wholly unfit. Surely, in sound reason, to work on the boilers; he worked if it would have been negligence to there under the direction of Williams, employ known incompetent mechanics, made such examination as Williams it would have been no less negligence directed and supervised. ... There for the manager, conscious of his own was evidence that a proper examinaignorance, to attempt, on personal ex- tion by a competent man like Williams amination, to make the repairs him- would have disclosed this unsafe conself.

dition and the necessity of condemning The review of the cases collected or replacing these boilers, as they in g 1055 of Labatt's Master & Servant were very old.

From Wilmay also be consulted. The New York liams's own statement, he was an excases there mentioned seem to be in- pert for the very purpose of examinaconsistent with an earlier ruling in tion and repair of boilers.

He was the same state, to the effect that error not a mere mechanic employed to do a would have been predicable if the trial particular job of work; he was the judge had refused to charge that the defendant, supervising and caring for defendant could not justify on the sole one very important part of defendant's ground that he had purchased the machinery, and if he neglected his boiler from reputable manufacturers, duty his neglect was that of defendand that this circumstance is merely ant. This is the obvious distinction one which the jury may properly con- between this case and that of Andersider as tending to exculpate him from son v. Hays Mfg. Co. (Pa.). [See note the charge of negligence. Losee v. 4, supra.] . . If it be argued that Buchanan (1873) 51 N. Y. 476, 10 Am. it was Donlan's neglect that caused Rep. 623.

the accident, and that he was a me5 In James McNeil & Bros. Co. v. chanic employed by Munroe & Sons, Crucible Steel Co. (1904) 207 Pa. 493, the answer is that Donlan worked un56 Atl. 1067, where the plaintiff's mill der the direction and supervision of was injured by the explosion of certain Williams, who knew what Donlan did boilers, which had been inspected and and what he neglected to do. The repaired by a mechanic sent by a firm, argument based on the assumption the grounds upon which the company that Munroe & Sons, as independent owning the boilers was held liable contractors, inspected and repaired were thus stated: “Here the repre- the boilers, and then turned them over sentative of defendant, Williams, was to defendant as safe, loses its force in an engineer of more than twenty the face of the evidence that their meyears' experience as an inspector of chanic worked under the direction and boilers in this plant;

supervision of Williams, who in that his especial duty to inspect them, to particular was the defendant corporahave them cleaned, to pronounce on re


C. B. L.

it was



FRED L. BORUFF et al., Appts.
BENJAMIN F. PORTER et al., Interveners.
California Supreme Court (In Banc) - February 15, 1924.

(- Cal.

223 Pac. 959.) Limitation of actions when statute runs undertaking to pay debt to

third person. 1. The Statute of Limitation begins to run in favor of one who under


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takes to pay another's unmatured obligations to a third person when, upon maturity of the obligations, he fails to pay them.

[See note on this question beginning on page 1056.] - contract for benefit of third person. ly and unnecessarily extend the bring

2. The statutory periods of limita- ing of the suit by deferring such detion are not excluded by a statutory mand or acceptance, but must make it provision that a contract made ex- within a reasonable time. pressly for the benefit of a third per- [See 17 R. C. L. 757.] son may be enforced by him at any

Contract · for benefit of strangers time before the parties thereto rescind necessity of acceptance. it.

7. Failure of a creditor whose debt - effect of bringing action against a third person has undertaken to pay, obligor.

to accept the proposal within a rea3. The bringing of an action against sonable time, revokes the proposal by the obligor upon an obligation which operation of law. another has undertaken to pay does Attorney and client notice to atnot toll the running of the Statute of

torney effect. Limitations in favor of the latter.

8. One is chargeable with knowl- right of one assuming mortgage edge of his attorney, employed to colto benefit of statute.

lect a claim, that payment of it has 4. A grantee who assumes and been assumed by a third person. agrees to pay a mortgage on the prop- [See 2 R. C. L. 962; 1 R. C. L. Supp. erty may take advantage of the limita- 667. See also note in 4 A.L.R. 1592.] tion period which has elapsed in his Principal and agent - notice acquired favor since his undertaking.

prior to agency

effect on princi[See 17 R. C. L. 792. See also note

pal. in 21 A.L.R. 496.]

9. Knowledge possessed by an agent Estoppel to contest assumed debt. while he occupies that relation and is

5. A grantee who by a covenant in executing the authority conferred uphis deed expressly recognizes the ex- on him as to matters within the scope istence and validity of a particular of his authority is notice to his prindebt, and assumes and agrees to pay cipal, although it may have been acthe same, is estopped thereby to claim quired before the agency, if it was that the debt was not valid or subsist- present in his mind at the time he ing when he assumed it.

acted for the principal. [See 19 R. C. L. 369; 3 R. C. L. Supp. [See 21 R. C. L. 842.] 934.]

Contract acceptance of offer de[See also note in 21 A.L.R. 490.] lay. Limitation of actions when demand 10. An unexplained delay by a credto be made.

itor of more than six years in accept6. Where a demand or acceptance ing an offer of a third person to satisis necessary before suit to perfect a fy his claim prevents the acceptance right of action, one cannot indefinite- from being within a reasonable time.

APPEAL by defendants Boruff et al., from a judgment of the Superior Court for the City and County of San Francisco (Troutt, J.) in favor of plaintiff in an action brought to recover the amount alleged to be due on a promissory note. Reversed.

The facts are stated in the opinion of the court.

Messrs. Knight, Boland, Hutchin- Wald's Pollock, Contr. p. 267; Danson, & Christin, and Alan C. Van iels v. Johnson, 129 Cal. 415, 79 Am. Fleet, for appellants:

St. Rep. 123, 61 Pac. 1107; Roberts v. The only purpose of $ 1559 of the Fitzallen, 120 Cal. 482, 52 Pac. 818; Code was to give the third party bene- Williston, Contr. § 398; Washer v. Inficiary a right of action which did not dependent Min. & Development Co. 142 exist at common law. It did not have Cal. 703, 76 Pac. 654; Robertson v. the effect, nor was it intended to have Stuhlmiller, 93 Iowa, 326, 61 N. W. the effect, of exempting such a con- 986; Anguish v. Blair, 160 App. Div. 52, tract from the operation of the Stat- 145 N. Y. Supp. 392; Kuhl v. Chicago ute of Limitations.

& N. W. R. Co. 101 Wis. 42, 77 N. W.

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