#### E. K. CATHEY v. SOUTHEASTERN CONSTRUCTION COMPANY.

(Filed 27 November, 1940.)

1. Pleadings § 20—

A demurrer challenges the sufficiency of the pleading, talcing as true the facts alleged and the relevant inferences of fact deducible therefrom, but the demurrer does not admit inferences or conclusions of law.

2. Master and Servant § 12 — Contractor furnishing scaffold for subcontractor may be held liable by employee of subcontractor for injuries resulting from defect existing by reason of negligence.

This action was instituted against the main contractor for the construction of a dwelling by an employee of a roofing contractor who had subcontracted the roofing for the dwelling. The complaint alleged that as a result of a course of dealing between the parties the contractor permitted the subcontractor to use the scaffold erected by the main contractor, that on the construction in question the contractor erected the scaffold and permitted the employees of the subcontractor to use the same in performance of the subcontract, that while plaintiff was on the scaffold in the performance of his work the scaffold fell, resulting in serious injury, and that defendant contractor was guilty of negligence proximately causing the injury in building the scaffold out of defective material, and in removing a support from the scaffold without warning to the employees of the subcontractor. *Held:*While the fact that plaintiff’s employer was an independent contractor would ordinarily relieve defendant of liability for injuries to a third person caused by the subcontractor’s negligence, such relationship does not relieve defendant of liability for its own negligence, and upon the factual situation alleged in the complaint the defendant was under duty to exercise due care to provide the employees of the subcontractor a reasonably safe scaffold, and therefore defendant’s demurrer to the complaint should have been overruled.

.3. Master and Servant § 49—

An employee of the subcontractor is not precluded by the Workmen’s Compensation Act from maintaining an action at common law against the *526main contractor for injuries resulting from alleged negligence on tlie part of the main contractor, since the action is not against plaintiff’s employer but against a third person.

Appeal by plaintiff from *Johnsion, Special Judge,*at 14 October, 1940, Extra Regular Civil Term, of MeckleNbubg.

Reversed.

The allegations in the complaint, in part, are as follows:

“3. That on and prior to December 28, 1939, the defendant was engaged as general contractor in the erection of a residence known as the Evans residence at Laurinburg, North Carolina.

“4. That under the contract between the owner of said residence and said Southeastern Construction Company, the Southeastern Construction Company was obligated to cover said residence with a slate roof of a particular kind, as set out in the contract between said parties.

“5. That the defendant sublet the contract for furnishing and installing the slate‘roof on said residence to Glasgow-Allison Company, a corporation.

“6. That the plaintiff, at the time of the injury hereinafter referred to, was employed by Glasgow-Allison Company to assist in installing the slate roof on the said residence as hereinbefore referred to.

*“7.*That prior to the letting of the subcontract for the furnishing and installation of the slate roof on said residence hereinbefore referred to, there had been a long course of dealing between Southeastern Construction Company and Glasgow-Allison Company involving similar subcontracts, and it was understood between said parties, pursuant to the course of dealing between them, that the necessary scaffolds to be used in the installation of the roof on said dwelling would be furnished by the defendant, Southeastern Construction Company.

“8. That the defendant, Southeastern Construction Company, did cause to be erected a scaffold, or scaffolds, along the walls of the residence hereinbefore referred to and slightly below the edge of the roof of said residence.

“9. That the defendant, Southeastern Construction Company, furnished to Glasgow-Allison Company, the employer of the plaintiff, the necessary scaffolds to be used in connection with the installation of the roof on said residence.

“10. That the Southeastern Construction Company, through its foreman or superintendent, gave Glasgow-Allison Company and its employees permission to use the scaffold hereinafter referred to.

“11. That Glasgow-Allison Company and its employees, including the plaintiff, used the scaffolds erected by the defendant in connection with the construction of the residence hereinbefore referred to with the knowledge of the Southeastern Construction Company, and had so used them for some time prior to the injuries hereinafter referred to.

*527“12. On the 25th day of December, 1939, while the plaintiff and two other employees of Glasgow-Allison Company were standing upon one of the scaffolds furnished and erected by Southeastern Construction Company, said scaffold fell to the ground.

“13. That the fall of said scaffold to the ground and the injuries resulting to the plaintiff therefrom, as hereinafter alleged, were proximately caused by the negligence of the defendant, in that:

“(a) The defendant furnished to Glasgow-Allison Company, to be used by its employees, including the plaintiff, a defective scaffold.

“(b) The defendant negligently constructed said scaffold from defective material causing it to break and give way and causing the scaffold to fall, and, in particular, furnished and used in said scaffold timbers as supports for the floor of said scaffold which were doughty and decayed and had large knots running entirely through said pieces of timber, and said timbers were of insufficient strength to support the weight which might reasonably be expected to be upon said scaffold.

“(c) The defendant, its agents, servants and employees, negligently failed to properly inspect the timbers used in the erection of said scaffold, and failed to properly inspect said scaffold both before and after its completion.

“(d) The defendant, through its servants, agents and employees, negligently removed a support from said scaffold without warning the plaintiff thereof when the defendant knew that the plaintiff and his co-employees of Glasgow-Allison Company were using said scaffold for the purpose of standing on the same while they placed the slabs of slate upon the roof of said residence and fastened them thereto.

“(e) The defendant undertook to furnish a scaffold for the use of the plaintiff and other employees of Glasgow-Allison Company and failed to exercise due care to furnish a scaffold which was reasonably safe for the purpose for which it was to be used.

“(f) The defendant invited and permitted the plaintiff and other employees of Glasgow-Allison Company to use said scaffold and failed to exercise reasonable care to see that the said scaffold was reasonably safe for said purpose, but, on the contrary, furnished a scaffold which was built at least in part of weak and defective material.

“(g) The defendant negligently and carelessly failed to exercise due •care to keep and maintain said scaffold in a reasonably safe, or proper ■condition.

“14. That, as a proximate result of the negligence of the defendant, as hereinbefore alleged, the said scaffold, with the plaintiff upon it, fell a ■distance of approximately twenty feet to the ground causing the plaintiff to sustain compression fractures of two or more of his vertebrae, a severe laceration of the right thumb, together with serious and painful injuries *528and bruises on various parts of His body; and severe sprains of Ms muscles and joints; that, as a result thereof it was necessary for the plaintiff to be treated in a hospital, and to be put in a plaster of paris cast for a period of several weeks, after which he has been compelled to wear a tight-fitting plaster of paris jacket; that he has incurred expenses for hospital and medical treatment; that he is informed and believes that he has permanent injuries to his back, his thumb and his hip joints; that he is unable, on account thereof, to engage in the roofing trade for which he is trained; that his earning capacity has been seriously and permanently impaired; that he has suffered and will continue to suffer intense pain of body and agony of mind; that he will continue to incur medical expenses, and that his injuries are lasting and permanent, and that he has been damaged by the negligence of the defendant,” setting forth the amount.

The defendant denied negligence, and in its further answer and defense set up, (1) plea of abatement, the lack of jurisdiction. If defendant was liable the parties were subject to the “N. C. Workmen’s Compensation Act” — N. C. Code, 1939 (Michie), ch. 133-A; (2) plea of contributory negligence; (3) assumption of risk; (4) negligence of fellow servant.

The defendant demurred *ore ienus*to the complaint: “(1) That the complaint does not state facts sufficient to constitute a cause of action against the defendant in that it appears from the face of the complaint: (a) The plaintiff at the time mentioned in the complaint was an employee of Glasgow-Allison Company, a corporation; (b) that Glasgow-Allison Company, a corporation, wa.s an independent contractor; (c) that the defendant, Southeastern Construction Company, was the general contractor; (d) that the relationship of master and servant did not exist between the plaintiff and the defendant; (e) that the work in which the plaintiff was engaged at the time mentioned in the complaint was not inherently or intrinsically dangerous; (f) that the defendant owed no duty to the plaintiff, and was guilty of no breach of duty to the plaintiff; (g) that the duty, if any by anybody, tp furnish the plaintiff a reasonably safe place in which to work was the duty of his employer, Glasgow-Allison Company, and not the duty of.the defendant.” The court below sustained the demurrer.

The plaintiff excepted, assigned error to the signing of the judgment and appealed to the Supreme Court.

*Robinson ■& Jones and II. L. StricMand for plaintiff.*

*Helms & MuTliss for defendant.*

*529ClakksoN, J.

N. 0. Code, 1939 (Micbie), sec. 511, is as follows: “The defendant may demur to the complaint when it appears upon the face thereof, either that: . . . (6) The complaint does not state facts sufficient to constitute a cause of action.”

In *Leonard v. Maxwell, Comr.,*216 N. C., 89 (91), the well settled rule is: “The office of a demurrer is to test the sufficiency of a pleading, admitting, for the purpose, the truth of factual averments well stated and such relevant inferences as may be deduced therefrom, but it does not admit any legal inferences or conclusions of law asserted by the pleader,” citing authorities.

The question involved: Under the facts and circumstances of this case, did defendant owe to plaintiff any duty — (1) In reference to seeing that the scaffold was of sufficient strength for the intended purpose and not built of defective material, or (2) not to remove a support from the scaffold while employees were at work upon it without warning such employees.

Does the complaint allege facts imposing a duty on the part of the defendant to exercise due care in reference to the plaintiff? We think so.

The allegations of the complaint show that the defendant was engaged in building the “Evans” residence at Laurinburg, N. C. In building the residence the defendant erected a scaffold for the purpose, slightly below the edge of the roof. The defendant employed the Glasgow-Allison Company to install the slate roof and the Glasgow-Allison Company employed plaintiff to aid in the work. Permission was given Glasgow-Allison Company and its employees to use the scaffold. It is alleged, “There had been a long course of dealing between Southeastern Construction Company and Glasgow-Allison Company involving similar sub-contracts, and it was understood between said parties, pursuant to the course of dealing between them, that the necessary scaffolds to be used in the installation of the roof on said dwelling would be furnished by the defendant', Southeastern Construction Company.”

The scaffold was used by plaintiff in his work in helping to slate the roof. The scaffold did not belong to the Glasgow-Allison Company, but to the defendant. It was left for the use of workmen who had to use the scaffold to perform the work of slating the roof. The scaffold was used with the knowledge of defendant. The scaffold was erected by defendant and used by plaintiff in his work, was negligently constructed from defective material. The complaint alleges: “In particular, furnished and used in said scaffold timbers as supports for the floor of said scaffold which were doughty and decayed and had large knots running entirely through said pieces of timber and said timbers were of insufficient strength to support the weight which might reasonably be expected to be upon said scaffold.” Defendant failed to inspect the scaffold *530before and after its completion. The complaint alleges, “The defendant, through its servants, agents and employees, negligently removed a support from said scaffold without warning the plaintiff thereof when the defendant knew that the plaintiff and his co-employees of Grlasgow-Allison Company were using said scaffold for the purpose of standing on the same while they placed the slabs of slate upon the roof of said residence and fastened them thereto,” and “Undertook to furnish a scaffold for the use of the plaintiff and other employees of Grlasgow-Allison Company and failed to exercise due care to furnish a scaffold which was reasonably safe for the purpose for which it was to be used.” On 28 December, 1939, while the plaintiff and two other employees of Grlasgow-Allison Company were standing upon one of the scaffolds furnished and erected by Southeastern Construction Company, said scaffold fell to the ground. That the fall of said scaffold to the ground and the injuries resulting to the plaintiff therefrom, as alleged in the complaint, were proximately caused by the negligence of the defendant, as before stated.

The complaint in this case, as in *Mack v. Marshall Field & Co.,*217 N. C., 55, sets forth actionable negligence against defendant — a third person — not against the employer. Therefore, the N. C. Workmen’s Compensation Act is not available to defendant.

The defendant owned the scaffold and had not taken it down. No new one was erected by plaintiff’s employer for the employees doing the slating. Defendant knowingly permitted plaintiff to use a scaffold made of defective material and of insufficient strength, and removed a support without notice to the employees. Nor did the defendant inspect same. It is alleged that as a proximate result, the scaffold fell with plaintiff and he was permanently injured. We think the complaint alleges a good cause of action against the defendant.

In *Campbell v. Boyd,*88 N. C., 129, it is held: “A private way was opened by the defendant for his own convenience and a bridge built over a creek which ran across it, and the public used the same with his knowledge and permission; the plaintiff sustained injury caused by the breaking in of the bridge, which the defendant knew to be unsafe, but which was apparently in good condition: *Held,*he was liable to the plaintiff in damages. The duty of reparation and the liability for neglect in such cases, rest upon the defendant, by whose implied invitation the public used the way.” At p. 131, it is said: “ 'The principle is well settled,’ remarks *Appleton, G. J.,*'that a person injured, without neglect on his part, by a defect or obstruction in a way or passage over which he has been induced to pass for a lawful purpose, by an invitation express or implied, can recover damages for the injury sustained, against the individual so inviting, and being in default for the neglect.’ *Tobin v. P. S. and P. R. R.,*59 Maine, 188. . . . (P. 132) The law does *531not tolerate tbe presence over and along a way, in common use, of structures apparently sound, but in fact ruinous, like man-traps, inviting travelers to needless disaster and injury. The duty of reparation should rest on some one and it can rest on none others but those who built and used the bridges, and impliedly at least invite the public to use them also. For neglect of this duty they must abide the consequences.” *Mulholland v. Brownrigg,*9 N. C., 349; *Batts v. Telephone Co.,*186 N. C., 120 (121). *We*think the principle above set forth analogous to the present action. *Thomas v. Lumber Co.,*153 N. C., 351; *Paderick v. Lumber Co.,*190 N. C., 308.

In *Greer v. Construction Co.,*190 N. C., 632 (636), it is written: “In *Paderick v. Lumber Co., ante,*308, it was held by this Court that an owner who furnishes defective machinery to its independent contractor, whose employee was killed by the operation of such defective machinery, was liable to the administratrix of such employee for damages. In the opinion it is said: ‘Under the facts and circumstances of this case, defendant having agreed with L. L. Paderick •. . . to furnish the loader, in so far as L. L. Paderick and those in his employ are concerned, in the operation of the loader, the principle of master and servant was applicable.’ It was held that the defendant owed to the employee of the independent contractor the duties prescribed by law to be observed by a master to a servant.”

It will be noted that the decision in the *Badericlc case, supra,*says: “The principle of master and servant was applicable,” not that they were master and servant. That principle is set forth in *Clinard v. Electric Co.,*192 N. C., 736 (141), as follows: “The degree of care required of an employer in protecting his employees from injury, a few variants of this form may be stated: ‘It is such care as reasonable and prudent men would use under similar circumstances.’ In the words of the Supreme Court of the United States, ‘The master is bound to observe all the care which prudence and the exigencies of the situation require, in providing the servant with machinery or other instrumentalities adequately safe for use by the latter.’ *Hough v. Texas & P. R. Co.,*100 U. S., 213, 24 L. Ed., 612. ‘Such care as ordinarily prudent persons exercise under the same or similar circumstances.’ ‘He uses that degree of care “which a man of ordinary prudence would use, having regard for his own safety, if he were supplying them (appliances) for his own personal use.” *(Cotton v. North Carolina R. Co.,*149 N. C., 227; *Marks v. Harriet Cotton Mills,*135 N. C., 287.)’ ”

In 27 Amer. Jur., sec. 30, p. 508, we find: “Although one employs an independent contractor to do certain work, and although he thereby escapes liability for the negligence of such contractor, he is nevertheless answerable for his own negligence. In other words, if an injury is *532caused by bis own negligence, and not by tbe negligence of tbe independent contractor, tbe employment of sucb contractor is no defense, notwithstanding tbe injury is occasioned to a person in tbe employ of sucb contractor. If tbe negligence of an employer concurs with tbe negligence of bis independent contractor, and an injury thereby results to a third person, tbe employer is not absolved from liability because be has employed a contractor. It is obvious that tbe employer remains liable for tbe nonperformance of any duties which arise out of tbe work in question, and which are not devolved upon tbe contractor. Also, where tbe employer reserves tbe right to direct tbe manner of performance of tbe contract in any particular, *or where he undertakes to provide any of the instrumentalities, he owes to the contractor and the latter’s employees the duty of exercising reasonable care with respect to such matters. Thus, if a contractor agrees to do certain work on a building and the owner imposes on himself the duly of erecting the necessary scaffolding for the work, he will be liable for injuries to a servant of the contractor received on account of negligence in erection of the scaffold. . . . In accordance with the familiar principle that every man who expressly or by implication invites others to come upon his premises assumes to all who accept the invitation the duty to warn them of any danger in coming, which he knows of or ought to know of, and of which they are not aware.”*(Italics ours.)

*Coughtry v. Globe Woolen Co.,*56 N. Y. Reports, 124, is a similar case. At p. 128 it is said: “At tbe time of tbe injury tbe scaffold belonged to tbe defendant, bad been erected by it, was in its possession and was being used on its premises, with its permission, for tbe very purpose for which it bad been furnished, and by tbe persons for whose use it bad been provided. Tbe only operation which tbe contract has in tbe case is to preclude tbe defendant from setting up that tbe defective structure was not its own but that of tbe contractor. Being conceded to be its own structure, furnished by it for use, tbe duty of due diligence in its construction arose, not merely out of tbe contract to furnish it, but from tbe fact that tbe defendant did actually furnish it for tbe express purpose of enabling and inducing tbe men who were to do tbe work to go upon it. It is evident from tbe nature and position of tbe structure that death or great bodily barm to those persons would be tbe natural and almost inevitable consequence of negligently constructing it of defective material or insufficient strength. It was clearly tbe duty of tbe defendant and its agents to avoid that danger by tbe exercise of proper care. *Thomas v. Winchester,*2 Seld., 397; *Godley v. Hagerty,*20 Penn. St. R., 387; *Cook v. The N. Y. Floating Dry Dock Co.,*1 Hilt., 436. This duty was independent of tbe obligation created by tbe contract.”

*533*We*tbink tbe cases cited by defendant distinguishable from the present action. See *Pafford v. Construction Co.,*217 N. C., 730; *Robey v. Keller,*U. S. Circuit Court, decided 7 October, 1940.

From tbe allegations of *the*complaint, *taken*as true for *the*purposes of this demurrer, we tbink it is a matter for tbe jury to determine and tbe nonsuit was improperly granted.

For tbe reasons given, tbe judgment of tbe court below is

Reversed.