Dissenting Opinion.
Henley, J.— I cannot concur in the conclusion reached by the majority of the court in this cause. It is contended by appellant that all the work complained of was done by independent contractors, who were men skillful and competent for the work, who employed and paid their own laborers and attended to all the details of the work, without any supervision upon the part of appellant. The other questions presented by this appeal are ably discussed by counsel, but as the special finding upon this point, in my opinion, precludes any recovery upon the part of the appellee in this action, I do not deem it necessary to discuss them.'
*503The questions then arise: (1) Does the law of this State excuse an employer from the consequences of a wrongful act of an independent contractor? (2) Does the special finding show that the parties, employed to do the work were independent contractors? (3) Was the appellee’s injury the result of the act of the employer or of the independent contractor?
In the case of New Albany Forge and Rolling Mill v. Cooper, 131 Ind. 363, the Supreme Court of this State by Coffey, J., said: “It is well settled that where one lets a contract to another to do a particular work, reserving to himself no control over such work except the right to require it to conform to a particular standard when completed, he is not liable for the negligence of the party to whom the contract is let.”
And in the case of Wabash, etc., R. W. Co. v. Farver, 111 Ind. 195, 60 Am. Rep. 696, it was said: “If, in rendering the ^service, the person whose negligence caused the injury was in the course of accomplishing a given end for his employer, by means and methods over which the latter had no control, but which were subject to the exclusive control of the person employed, then such person was exercising an independent employment, and the employer is not liable.”
In the case of the Vincennes Water Supply Co. v. White, 124 Ind. 376, the court said: “It seems to be settled law that where one person lets a contract to another to do a particular work, reserving to himself no control over the manner in which the work shall be performed, except that it shall conform to a particular standard when completed, he is not liable for any injury which may occur to others by reason of any negligence of the person to whom the contract is let.” Also, see Ryan v. Curran, 64 Ind. 345, 31 Am. Rep. 123; Zimmerman v. Baur, 11 Ind. App. 607. The case of Blake v. Ferris, 5 N. Y. 48, 55 Am. Dec. 304, is *504cited as stating the law by the Supreme Court of this State. The last mentioned case is an elaborate and well-considered opinion as to the liability of an employer for the negligent act of an independent contractor and in the course of the opinion the court makes use of the following language: “The impracticability and injustice of the construction of the rule of respondeat superior, contended for by the plaintiff below, may be further illustrated by the supposition of a very common case in this country, — that of a man, who is about to build a home for himself. He may, if he pleases, superintend and manage the whole from its commencement to its completion, employ men, give directions in respect to every part of the work, which his men would be bound to follow, and thus make himself the master in fact of all the persons employed; but as Baron Park said about the butcher’s driving the ox, he is not bound to do so, and he may not know how to do it. He may, therefore, let out by contract, the building of the house to some person who will undertake to furnish all the materials and complete the building in a specified manner, and for a stipulated compensation. Would he thereby become the master of all the contractor’s appurtenances, servants and men employed by him, and render himself liable for all the injuries to third persons, which might be occasioned by their negligence or misconduct in doing any act tending to the construction of the house? * * * The truth is, such a contract does not constitute the contractor the agent or servant of the employer, nor authorize him to pledge the responsibility of the employer for the conduct of servants, nor for anything to be done in the execution of his contract.”
Another New York case upon this point, cited with approval by the Supreme Court of this State is the *505case of Town of Pierrepont v. Loveless, 72 N. Y. 211, in which, case the judge who wrote the opinion has collected a large number of authorities upon the subject. Also, see Dehority v. Whitcomb, 13 Ind. App. 558; Sessengut v. Posey, 67 Ind. 408, 33 Am. Rep. 98; City of Logansport v. Dick, 70 Ind. 65, 36 Am. Rep. 166; Cameron v. Oberlin, ante, 142; Thompson on Neg., vol. 2, p. 899.
We then come to the second question: Does the special finding show that the parties employed to do the tuork were independent contractors¶
As will be seen by the special finding, appellant in the year 3892, began tearing down his old building for the purpose of erecting a new one on the same ground, and on the 11th day of February, 1892, he obtained from the city a proper building permit, whereby, as will be seen by the permit which is made a part of the special finding, he was permitted by said city of Lafayette, during the time said permit was in force, to use one-half of the width of Third and Ferry streets, immediately fronting his said property, for depositing building material, commencing at the outer edge of the adjacent sidewalk. Some time in April, 1892, the appellant contracted with Green & Demerly, who were skillful and competent brick and stone masons, to tear down his old building and do the brick and stone work for his new building; they were to dean and use such old bricks, as were suitable, in the new building, and were to do all said work including the work on the new building at an agreed price. Afterwards by agreement between Green &■ Demerly, the appellant and one Henry Martin it was agreed that appellant might deduct $130.00 from the amount to be paid the firm of Green & Demerly and pay it to said Henry Martin who should haye charge of tear*506ing down the old building and cleaning the bricks thereof, and that said Martin was to employ and pay all such assistants as he might require in doing said work; that Martin was a competent and experienced workman in the line in which he was engaged, and that the appellant exercised no control over said Martin or his employes in directing how said work should be done, except that said appellant did direct said Martin to pile such bricks as were to be used in the new building in the street, as he had a perfect right-to do under the permit from the city, but he did not direct or order said Martin to pile any of said bricks in the gutter of said street.
The mere act of piling the building material in the street was a lawful and duly authorized act, and appellant had a perfect right to show, the contractors upon w7hat street they would be permitted to put the material. The finding does not show7 that the contract with Miller to remove the' old material and deposit it in the street, was an unlawful act, or required in its discharge or the discharge of any part thereof, the commission of a nuisance. A lawful act may be done in such a manner as to make it wrongful. It' thus follows that the work contracted for may be in every respect lawful and yet the contractor may have proceeded in such a manner and under such circumstances as to make it wrongful, but he cannot by so doing make his employer liable.
Under the special finding in this cause, when, if ever, did Martin become the servant of appellant so that appellant became liable for his, Martin’s, negligent act? If Martin was the servant of any one, he was the servant of Green & Demerly, because they, by their contract wdth appellant were to tear down and remove the old building and to furnish the material, and to do the brick and stone work of the new *507building, and as a part of the consideration for the said work were to receive the old bricks which were suitable to go into the new building. These old bricks to be used in the new building were the bricks which were piled in the street by Martin. The only connection that appellant had with Martin, either directly or remotely, was that, by reason of an agreement with Green & Demerly, appellant paid to Martin a certain part of the money appellant had agreed to pay Green & Demerly, because Martin performed a part of the Green & Demerly contract.
Under the contract of appellant with Green & Demerly, the old bricks which were suitable for the new building entered into the consideration of their contract and at once became the property of Green & Demerly. These were the bricks which were piled by Martin in the street. Appellant had procured the right from the proper authorities to use certain parts of the street for the purpose of depositing building material thereon. No one but appellant could procure the permit. ‘ When the contractor inquired of appellant where he should deposit the building material, — and the suitable old bricks can be regarded in no other light than as building material, — appellant certainly had a perfect right to-inform the contractor upon which streets his permit from the city would allow the building material to be placed. The special finding also clearly shows that there was ample room on the streets where the license was granted appellant, for the contractors to have placed many times the ampunt of bricks which were placed there without in any wise interfering with the flow of the water or obstructing the gutter. Shall appellant then be held liable because, in the execution of a work in every respect lawful the contractor proceeded in such a manner as to make it wrongful? We think *508not. If tlie piling of the bricks which were to be used in the new building, in the street, was the proximate cause of the injury, then appellant is not liable. Neither is appellant liable if the proximate cause of the injury was the digging below the foundation of the adjoining building which fell, because both acts were the acts of an independent contractor, pursuing a lawful work, the natural consequences of the doing of which did not produce appellee’s injury.
From a most careful examination of all the facts, so fully set out by the special finding in this cause, it seems to me that the conclusion is irresistible, that the direct and the proximate cause of the fall of the Marshall building was the removal of the lateral support of appellant’s soil from the foundation of the said Marshall building. If this be true, then appellant is in no wise liable for appellee’s damages, the special finding showing that the removal of the lateral support of appellant’s soil having been done in a careful and painstaking manner, and so as not to interfere with said foundation, and that appellant had no reason to believe that such removal would endanger the Marshall building. That appellee was injured cannot be denied, but it is not to every injured person that a remedy is provided by law; neither should appellant be held liable for the negligent act of another.
I am firmly convinced that this cause ought to be reversed, with instructions to the lower court to restate its conclusions of law upon the special finding of facts and render judgment in favor of appellant.