LaMpert v. Laclede Gas-Light Co.

Decision Date20 November 1883
Citation14 Mo.App. 376
PartiesMOSES LAMPERT, Respondent, v. LACLEDE GAS-LIGHT COMPANY, Appellant.
CourtMissouri Court of Appeals

APPEAL from the St. Louis Circuit Court, ADAMS, J.

Reversed and remanded.

C. & C. E. GIBSON, for the appellant: A mere subordinate employe can not bind the corporation which employs him, in all respects and at all times, by knowledge which he may acquire.-- Maupin v. Mining Co., reported in addendum to Cent. L. J., of July 20, 1883; Wharton on Agency, sects. 178-673; Story on Agency, sect. 140; Ang. & Ames on Corp., sect. 308. A plaintiff can not avail himself of the provisions of a contract unless he is individually a party to the contract.-- Necker v. Harvey, Cent. L. J., Feb. 9th, 1883; Davis v. Clinton Water-works, 54 Iowa, 59; Atkinson v. Newcastle Water-works, 2 Excheq. Div. 441; Nickerson v. Hydraulic Co., 46 Conn. 24; Wharton on Neg., sects. 439, 440, 441; Bissell v. Roden, 34 Mo. 63; Sher. & Redf. on Neg., p. 68, sect. 54; Winterbottom v. Wright, 10 Mees. & W. 109; Langmeidv. Halliday, 6 Exch. 761; Heanen v. Pender, L. R. 9 Q. B. Div. 302; Losee v. Clute, 51 N. Y. 474. The duty of keeping the streets clear and free from such obstructions was an obligation undoubtedly imposed upon the city ( Welsh v. City, 73 Mo. 74); but no such duty ever attached by law to the defendant or any individual citizen, in case of obstructions accidentally thrown in the street.-- Kirby v. Market Association, 14 Gray, 249; Jamison v. Atchison, 16 Kan. 358; Eustis v. Johns, 38 Cal. 3; Heeney v. Sprague, 11 R. I. 456; Vandyke v. Cincinnati, 1 Disney, 532; Flynn v. Canton Co., 40 Md. 312.

W. H. CLOPTON, for the respondent: The question of the sufficiency of the petition herein is res adjudicata. Defendant contended below that the city could not shift its liability to keep the streets, etc., in repair. We concede that it could not, so as to escape liability, but we contend that defendant quoad hoc was a joint tort-feaser.-- Buesching v. St. Louis Gas Co., 73 Mo. 219; Blake v. City, 40 Mo. 571. Joint tort-feasors.--2 Thomp. on Neg., 891, 892; Id. 789, and cases cited; Wharton on Neg., sect. 395; Klauder v. McGrath, 35 Pa. St. 128; Sher. & Redf. on Neg., sect. 56; Irwin v. Fowler, 5 Robt. 482. The defendant is liable for non-feasance as well as for misfeasance. Sherman & Redfield on Negligence (sect. 353), use this language: “One who legally contracts with the public authorities to keep in repair a highway, canal, or other public work is liable to any one who is specially injured by his omission to perform his contract, or his negligent performance thereof.”-- Robenson v. Chamberlain, 34 N. Y. 389; Fulton F. Ins. Co. v. Baldwin, 37 N. Y. 648.

THOMPSON, J., delivered the opinion of the court.

This cause was before this court at a former term. 12 Mo. App. 576. The plaintiff had recovered a judgment against the defendant, and we reversed the same, on the ground that the case had been put to the jury upon errone ous instructions. It has again been tried, and the plaintiff has again recovered a judgment.

We are now asked by the learned counsel for the appellant to consider the question of the sufficiency of the petition, a question which was not considered by this court on the former appeal. On the other hand, it is urged that what was considered and decided on the former appeal necessarily involved an adjudication of the sufficiency of the petition in favor of the respondent. We do not gather from the briefs which were filed at the hearing of the former appeal that our judgment upon this question was distinctly asked by either party. If it had been asked, and had not been given, for reasons which were satisfactory to us then, we should not now be precluded from considering it by any rule of procedure with which we are acquainted. A court will not, on a second appeal, as a general rule, allow a question to be reopened and discussed which was decided at the former appeal. Lesinsky v. Dispatch, 13 Mo. App. 576; Metropolitan Bank v. Taylor, 62 Mo. 338. But this principle has no application to questions which, though presented, were not considered on the former appeal. Such an application of the rule would be unjust. It would conclude, against the rights of a party who had invoked the decision of the court upon a meritorious question, the question itself, without the court ever having really examined or decided it. State ex rel. v. Garroutte, 67 Mo. 445. We, therefore, conceive it to be our duty to consider whether a cause of action is stated by the petition.

The petition reads as follows: “Plaintiff, for amended petition, filed by leave of court, states that, at the times hereinafter mentioned, the defendant was a corporation, incorporated under the laws of the state of Missouri; that at said times the city of St. Louis had, by its charter, power to light the streets in said city and keep the same and the sidewalks in repair, and it was the duty of said city to keep said streets and sidewalks in a safe condition for persons passing along them; that the said city had at said times power to contract with persons or corporations for lighting the streets in said city; that on and before the 10th day of September, 1880, Eighth Street and Wash Street were public streets in said city; that on the 28th day of February, 1873, the defendant, the Laclede Gas-Light Company, entered into a contract with said city of St. Louis, whereby said Gas-Light Company agreed with said city to keep in good repair and supply all the public lamps, lamp posts, and burners then erected or thereafter to be erected in that part of the city of St. Louis lying north of Washington Avenue, and that said Gas-Light Company would light said lamps one-half hour after sunset of every day except when the clear moon light rendered it unnecessary.

That, prior to said 10th day of September, 1880, there was a public lamp post and lamp on the southwest corner of said Eighth and Wash Streets, which is north of said Washington Avenue; that, on the afternoon of that day, said lamp post and lamp fell across and on the pavement or sidewalk of said corner of Wash Street and Eighth Street, and was carelessly and negligently allowed by defendants to remain on and across said sidewalk and pavement until and during the night of said 10th of September, 1880; that said lamp post and lamp obstructed the way on said sidewalk, and that no lamp was lighted by defendant, although there was no moon light, nor was any guard or warning placed on or near said obstruction, although said defendant had notice that said lamp post and lamp had fallen across and were lying on said sidewalk.

Plaintiff says that on the night of September 10, 1880, it being then and there very dark, he was walking along said pavement at said corner of Wash and Eighth Streets, and, without fault or negligence on his part, but by reason of the said fault, negligence, and carelessness of defendant as aforesaid, plaintiff stumbled over said lamp post and fell, and did then and there greatly lacerate, hurt, and wound one of his legs; and thereby plaintiff became and was sick, sore, is now, and will permanently remain, sore and lame.

That he has been since said date, and always will be, prevented by said injury from performing and transacting his usual work and business; that he has been put to great expense in and about attempting to be cured of said injury, to-wit: the sum of $100, and he has by reason of the premises been otherwise damaged in the sum of $5,000, for which sums, and for his costs, he asks judgment.”

It will be perceived that this petition in effect declares against the defendant upon a contract which the defendant had made with the city for keeping certain public lamp posts in repair, and asks for damages which the plaintiff is alleged to have sustained through a negligent breach on the defendant's part of this contract. And the question is, whether this contract raised such a duty on the part of this defendant toward the public generally that an action would lie against it by any person who might be injured through its non-feasance in failing to comply with the same. Fifty years ago such a question would not have admitted of much debate in a court of common law. The general rule of that law was that actions upon contracts can only be maintained by the parties to the contract or by their representatives. This question underwent consideration before that very learned and able lawyer, Mr. Baron Parke, in the case of Langridge v. Levy (2 Mees. & Wels. 519; affirmed in Exch. Cham., 4 Mees. & Wels. 337). There, a father purchased a gun to be used by himself and his sons, which the vendor warranted to be good and safe. While in use by one of his sons, it burst, in consequence of being defectively constructed, and the son was thereby injured. It was held that the son was entitled to maintain an action against the vendor of the gun. But Baron Parke, in giving his judgment in the court of exchequer, distinctly denied the principle for which the plaintiff's counsel contend, namely, that wherever a duty is imposed on a person, by contract or otherwise, and that duty is violated, any one who is injured by the violation of it may have a remedy against the wrongdoer. He declined to lay down a principle which would lead to such an indefinite extent of liability; but he said: We decide that he is responsible in this case for the consequences of his fraud, whilst the instrument was in the possession of a person to whom his representation was, either directly or indirectly, communicated, and for whose use he knew it was purchased.” In a later case in the court of exchequer, it was well said by Mr. Baron Cleasby that, in a case presenting appropriate facts, the word ““negligence” might be substituted for “fraud.” Accordingly, where a person purchased of a chemist a bottle of hair-wash to be used by his wife in dressing her hair, and his wife used it and thereby received injuries in consequence of its...

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