additional ground, as well as joining in the ground urged by De Veau; namely, it is contended in behalf of the Washington Gas Light Company that it is not liable as a matter of law for any negligence of De Veau if De Veau is found guilty of negligence in this case. This contention requires a brief review of the relations between the two defendants. De Veau was a separate and independent corporation engaged in the business of street repairs. The defendant Washington Gas Light Company was accustomed to turn over to the defendant De Veau, as has been stated, the work of repairing and covering up any excavation previously made by the Gas Light Company and restoring the street to its original condition. De Veau had its own employees whom it hired and fired, and whom it paid. It owned the equipment and the material used in its work. There is no contention that De Veau was either an affiliate or subsidiary of Washington Gas Light Company, or that there were any intercorporate or interlocking relations between the two corporations. The evidence indicates that the two concerns were independent of each other, having purely a business relation.
It was the practice of the Washington Gas Light Company, whenever it desired any street repairs made by De Veau, to issue an order on a printed blank, and this course was followed in the case at bar. The Washington Gas Light Company did not supervise the job and had no control over the manner in which the work was done. Clearly De Veau was an independent contractor and there was no master and servant relation between the Gas Light Company and De Veau.
It is claimed, however, in behalf of the plaintiff that the Gas Light Company exercised such control over the employees of De Veau in connection with the project in question as to be responsible for their negligence. The Maryland law on this point is aptly summarized in Keitz v. National Paving & Contracting Company, 214 Md. 479, 491, 134 A.2d 296, 301, 136 A.2d 229, which contains the following statement:
'The decisive test in determining whether the relation of master and servant exists is whether the employer has the right to control and direct the servant in the performance of his work and in the manner in which the work is to be done.'
There is no evidence that the Washington Gas Light Company had the right to control and direct the employees of De Veau in the performance of the work and in the manner in which the work was to be done.
Counsel for the plaintiff points to the fact that the Washington Gas Light Company had an inspector whose function was to visit the various jobs to determine that the work was being done in accordance with the contract contained in the repair order and to make any suggestions or give any advice that might appear proper. Obviously his function was no different from that of an architect employed by a property owner in connection with supervising the construction of a building by a contractor, or the function of any inspector who represents the owner for whom a contractor is doing work. The activities of such an inspector do not constitute such control as to burden his employer with any liability for the negligence of the contractor's employees. Were the law otherwise, it would be a dangerous matter for any property owner to have an architect supervising or representing him in connection with the construction of a building by a contractor, or for any property owner to have an inspector inspecting work that is being done for him.
It is argued, however, by able counsel for the plaintiff that certain duties are imposed on a property owner that are not delegable. Such duties do exist. For example, if the contractor is to perform work on the property of the owner, it is the owner's duty to provide a safe place to work, a duty that he may not delegate. So, too, the property owner would be liable if the injuries were caused by the nature of the project itself rather than by the negligence in the manner in which it is carried out. This distinction is definitely pointed out by the Court of Appeals of Maryland in Bernheimer Brothers v. Bager, 108 Md. 551, 560, 70 A. 91.
The Court is therefore of the opinion that no basis of liability whatever has been shown as against the Washington Gas Light Company and its motion for a directed verdict will be granted.
In conclusion, the Court hereby grants the motion of the defendant Washington Gas Light Company for a directed verdict in its favor and denies the motion of the defendant J. H. De Veau & Son, Inc., for a directed verdict in its favor.
The trial will proceed on the issue of damages insofar as the second defendant is concerned.
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