Opinion of the Court.

ants. A motion for a new trial was entered, but overruled by the court, and a judgment rendered on the finding, and plaintiff appeals.

The first question presented is, whether the license contained in the lease, for the landlord, his agent, attorney or assigns, to enter into possession, with or without process of law, and expel and remove the tenant or any other person occupying the premises, and to use such force as might be necessary in so doing, and to regain and repossess the premises, in case Fabri held over, authorized the acts of appellees. It is not pretended that Fabri surrendered possession at the expiration of the term, or that he had paid rent for a considerable time previously. He was notified to quit, but declined to do so, and his chattels were then removed from the building.

At the common law, whenever a right of entry existed, the person disseized might lawfully regain possession by force. 1 Chitty's Prac. 646. But if, in doing so, he committed a breach of the peace, he was liable criminally. This rule of law was changed by the enactment of our statute giving the action of forcible entry and detainer, which gives a civil remedy to regain possession; and that statute took away the right to make entry by force from the landlord or person whose possession had been invaded; but in the cases of Ambrose v. Root, 11 Ill. 497, and Page v. Du Puy, 40 ib. 506, it was held, that, where the lease contained a provision similar to this, and the landlord entered and removed the tenant therefrom, using no unnecessary force for the purpose, the contract was lawful, and did not contravene the forcible entry and detainer law, and the tenant could not recover. Those cases are conclusive of this

question.

The case of Reeder v. Purdy, 41 Ill. 279, and others, are supposed to modify the rule, but the broad distinction is, that, in these cases, it did not appear that the person charged with the trespass had been authorized by the occupant of the premises, or by the person from whom he held, to make such a forcible entry, whilst in the former cases such a license had been given. In the one class of cases, the occupant had expressly

Opinion of the Court.

agreed that the landlord might make such an entry, thereby waiving the trespass, unless the license should be abused by the use of excessive force, whilst in the other no such authority had been given. In this respect, the two classes of cases are entirely unlike; and in this case the jury have, we think, properly found that there was no abuse of the authority; nor was there any error in the instruction given on that question.

It is insisted that the court below should have given appellant's fourth instruction. All it contained that was proper had been given in other instructions. Even if the evidence as to the pendency of the forcible entry and detainer suit was admitted without objection, still that evidence in nowise controlled the rights of the parties. The prosecution of the forcible detainer proceedings did not in the least abrogate or modify the agreement that Bryan or his assignee might make the entry. Merriman had the right to pursue either or both remedies simultaneously. The resort to the one did not take away the other. Hence, the instruction of the court, on its own motion, on that question, was proper, and it would have been improper to give another instruction containing the reverse of the proposition; and a careful examination of the evidence fails to show that there was any evidence tending to show that appellant had the slightest pretense to the right of possession. His lease had long since expired; he had failed to pay rent, and had refused to surrender possession, when properly demanded. Hence, there could not be the slightest wrong done to appellant by this instruction.

All the evidence considered, we are clearly of opinion it sustains the verdict, and we discover no error requiring the reversal of the judgment of the court below, and it must be affirmed.

Judgment affirmed.

Opinion of the Court.

WILLIAM E. HALE et al.

V.

JOHN JOHNSON,

1. NEGLIGENCE-employer not liable for negligence of contractor in performance of work under contract. While a master is responsible for injuries arising from the negligence of his servant, a party who has contracted for the doing of certain work for his use and benefit is not liable for injuries arising during the performance of such work.

2. MASTER AND SERVANT-when the relation does not exist between employer and employed. One who contracts to do a specific piece of work, furnishing his own assistants and executing the work either entirely in accord with his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor, and not a servant, and a person injured by his negligence in the performance of the work would have no right of action against the party for whose benefit the work is being done.

APPEAL from the Circuit Court of Cook county; the Hon. HENRY BOOTH, Judge, presiding.

Messrs. HITCHCOCK & DUPEE, for the appellants.

Mr. W. W. PERKINS, and Messrs. HUNTER & PAGE, for the appellee.

Mr. JUSTICE SHELDON delivered the opinion of the Court:

This was an action upon the case, brought by Johnson against defendants Hale, Moss and Rowe. The declaration alleges that Rowe was erecting a building upon certain premises which he owned; that he employed Hale and Moss as his contractors and servants in such erection; that Hale and Moss employed Johnson, the plaintiff, as a day-laborer and servant upon the building, and that he was working there under their direction and control; that while he was so engaged, there was an unsafe wall on the premises liable to fall; that this was known to each of the defendants, but not to plaintiff; that Hale and Moss, with the consent of Rowe, ordered plaintiff to excavate near

Opinion of the Court.

this wall; that while he was so laboring, through the negligence of defendants and without any negligence on his part, the wall fell upon him and crushed his arm, which had to be amputated,

etc.

A verdict was found, and judgment entered against all the defendants.

There was clearly error in rendering judgment against defendant Rowe.

The evidence shows that Hale and Moss were contractors, engaged in jobs of this sort; that in this case they undertook to excavate for the foundations of a building for Rowe, and were to be paid a percentage upon the cost of the labor; that they employed and paid all laborers themselves; that they alone exercised supervision of the work; that plaintiff was employed by them as a day-laborer about the work at the time he received the injury complained of. It does not appear that Rowe had any connection whatever with the excavation which was being done, after the making of his agreement with Moss and Hale, further than to pay them the stipulated price when the work was finished.

While a master is responsible for injuries arising from the negligence of his servant, it is the doctrine that a party who has contracted for the doing of certain work for his use and benefit is not liable for injuries arising in the performance of such work. Scammon v. City of Chicago, 25 Ill. 424; 2 Hilliard on Torts, p. 537, § 11; Wharton on Negligence, § 181, and cases cited by these authors. Shearman and Redfield, in their work on Negligence, in discussing the subject of who are contractors or servants, in § 77 lay it down that, "one who contracts to do a specific piece of work, furnishing his own assistants, and executing the work either entirely in accordance with his own ideas, or in accordance with a plan previously given to him by the person for whom the work is done, without being subject to the orders of the latter in respect to the details of the work, is clearly a contractor and not a servant."

We have no doubt that Hale and Moss here occupied, as to Rowe, the position of contractors, and not servants. It is not

Opinion of the Court.

enough to charge defendant Rowe, for plaintiff to prove that he has suffered loss by some event which happened on Rowe's premises. He must also prove that Rowe violated a duty resting on him toward the plaintiff. There is no pretense of that, more than is supposed to arise from the alleged negligence of Hale and Moss or their foreman; but plaintiff having been employed by Hale and Moss, and they being contractors, and not agents or servants of Rowe, there was no privity whatever between Rowe and plaintiff.

There is no ground of liability as respects Rowe.

Appellee urges that this objection should not be considered because it is raised here for the first time; that it should have been raised in the court below by demurrer, motion in arrest of judgment, or on motion for a new trial, and that not having been so done, the objection was waived. The objection does not go to the sufficiency of the declaration, but of the evidence. While the declaration does speak of Hale and Moss as contractors, it also charges that they were servants of Rowe. All the counts allege personal negligence on the part of each defendant, which, if proved, would sustain the judgment. So that there was no ground of demurrer, or for a motion in arrest of judgment, in this respect.

As to not suggesting the objection in the motion for a new trial, one of the causes assigned under the motion was, that the verdict was contrary to the evidence. This covered it. The evidence did not support the verdict which was rendered. A motion for a new trial upon this ground having been overruled, the decision may be here reviewed.

The judgment being unauthorized as against the defendant Rowe, it must be reversed. This renders it unnecessary to consider the question as to whether there is any liability as respects the contractors, Hale & Moss.

The judgment is reversed and the cause remanded.

Judgment reversed.