Waugh v. Shunk

The opinion of the Court was delivered, by Woodward, J.

The defendant in error brought this action of assumpsit to recover compensation for services rendered the defendants (now plaintiffs in error), in 1846 as manager in the erection of a blast furnace in Mercer county, for the manufacture of pig metal by the use of raw bituminous coal.

The defence set up was that the work was so unskilfully done that it did not answer the purpose designed, and that a portion of it had to be taken down, altered, or rebuilt, at a great delay and expense to the defendants.

Evidence having been given on the one side and the other, the Court instructed the jury to inquire, 1st. How long the plaintiff was in the defendants’ employ. 2d. What were his services worth, and how much had he received. In ascertaining how much his services were worth, the jury were directed to consider the evidence in reference to the manner in which the work was performed, as the value of an overseer in the erection of a furnace would depend much on the degree of skill exercised by him for his employers’ benefit. Then followed the remark which is assigned for error :— “ The overseer does not warrant the successful operation of the furnace, and is not liable for losses resulting from the imperfect manner of its construction, unless there has been gross negligence or wilful misconduct.”

*133 The charge is to be taken altogether, and so taken, we think it teaches the doctrine that a man who holds himself out to the world as skilled in a particular branch of industry, and who undertakes to perform a piece of work in his appropriate art, is entitled to compensation, on a quantum meruit, whatever the consequences resulting from his imperfect performance, unless there have been gross negligence or wilful misconduct.

To this doctrine we cannot subscribe. Where skill, as well as care is required in performing the undertaking, if the party purport to have skill in the business, and he undertakes for hire, he, is bound to the exercise of due and ordinary skill in the employment of his art or business about it, or, in other words, to perform it in a workmanlike manner. In cases of this sort he must be understood to have engaged to use a degree of diligence, and attention, and skill adequate to the performance of his undertaking. It is his own fault if he undertake without sufficient skill, or applies less than the occasion requires: Jones’ Bailment 91; 2 Kent’s Com. 458; Story’s Bailment 281.

Ordinary skill, means that degree which men engaged in that particular art usually employ; not that which belongs to a few men only of extraordinary endowments and capacities: 1 Bell’s Com. 458. Of course the degree of skill which is required rises in proportion to the value, the delicacy, and the difficulty of the operation. The want of ordinary skill, is ordinary negligence. Gross negligence, is the absence of slight skill. If, therefore, an artisan who undertakes a piece of work which he professes to understand, is liable only for gross negligence, he is bound to bring only slight skill to its execution, which is a conclusion opposed to all authority. But if he is bound to employ ordinary skill, as reason and the authorities teach, he is liable for more than gross negligence, or wilful misconduct — he is liable for whatever imperfection and failure result from want of that measure of skill.

The construction of blast furnaces is an art. They are usually attended with large investments, and extensive preparations for business. The suecessfulness of the enterprise depends very much on the skill with which the work of construction is done, and when a party, professing skill and experience in planning or erecting them, is called in to superintend the work, the rules of law applicable to other artisans, attaeh to him. If he fail to come up to the standard of his duty, the consideration of the implied contract fails, and he cannot recover compensation for such work as he has done. The .cause ought to have been put to the jury on these principles, and as it was not it must go back.

There was no error in rejecting the evidence of Edward Brown.' It was clearly irrelevant. If it were necessary to prove the general reputation of Shunk, as a builder of furnaces, it was not to be done by investigating the quality of particular jobs, for this *134 would have involved as many collateral issues as be had built furnaces.

The objection taken to the-deposition of James P. Raymond is better grounded. It nowhere appears on the face of the deposition, or the accompanying certificate, that it was taken before any person .qualified to administer oaths. It is certified by G-. L. Robinson, to have been taken before him at his office in Allegheny City; but he claims no official character, and there was no proof before the Court, so far as the record intimates, that he was an alderman of that city. It is said, the notice served styled him an alderman, but that is not before us, and Mr. Robinson does not certify that the deposition was taken in pursuance of such a notice. There is nothing in the record from which a reasonable intendment can be made that this deposition, wholly ex parte, was taken before a qualified person. The party might have supplied this defect, by some satisfactory evidence. A rule to take depositions implies that the examiner be a judge, or justice of the peace, though it be not so set down: Keller Nutz, 5 Ser. & R. 248. The power may be delegated by the Court to a commissioner who has no official character: Philippi v. Bowen, 2 Barr 20. But in either ease, the capacity in which the examiner acts should appear in his certificate and return. If there be appearance and cross-examination, all objections to the examiner are waived. Here there was none. The deposition was ex parte, and its defects remain on its head. It should therefore have been rejected.

The judgment is reversed and a venire de.novo awarded.