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Hixon v. Sherwin-Williams Co. - 671 F.2d 1005 (7th Cir. 1982)


At common law, a principal is not liable for the torts of his independent contractors; respondeat superior is inapplicable.


American States Insurance Company (American) hired Marv Hixon to install new linoleum in an insured's home. Hixon subcontracted the job to Sherwin-Williams Company (Sherwin-Williams) which, in turn hired Louis Benkovich. A part of the insured's home was destroyed by a fire that resulted from Benkovich's negligence. American and Hixon appealed from the district court, which had granted a directed verdict to Sherwin-Williams. The district court had diversity jurisdiction over American’s action under 28 U.S.C.S. §§ 1332 (a) and (c) and permitted joinder of Hixon’s claim despite the fact that it claimed less than the jurisdictional amount of damages.


Was Sherwin-Williams liable for Benkovich’s negligence?




The court modified the directed verdict to Sherwin-Williams in order to dismiss Hixon’s claim on the bases that the district court should not have exercised pendent jurisdiction because the amount in controversy was less than the jurisdictional amount so it should have been decided by a state court. The court affirmed the directed verdict to Sherwin-Williams because Benkovich was experienced and, thus, there was no issue of Sherwin-Williams’ having engaged in negligent hiring. In addition, the work in which Benkovich was engaged was not hazardous. The court held that, because there was no privity of contract between Sherwin-Williams and American, the latter had no cause of action for breach of warranty.

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