City of Independence v. Slack

Decision Date31 March 1896
PartiesThe City of Independence, Appellant, v. Slack et al
CourtMissouri Supreme Court

Appeal from Jackson Circuit Court. -- Hon. J. H. Slover, Judge.

Affirmed.

Flournoy & Flournoy for appellant.

(1) One whose acts are the primary cause of an injury to another, for which a city is compelled to respond in damages is liable over to such city for such damages. 2 Dillon's Municipal Corporations [3 Ed.], sec. 1062; St. Joseph v Railroad, 116 Mo. 637; Portland v. Richardson, 54 Maine, 46; Littleton v. Richardson, 34 N.H. 179; Boston v. Worthington, 10 Gray (Mass), 496. (2) Even if this case be determined on the theory that an independent contractor did the work, defendants can not escape liability and the demurrer to plaintiff's evidence should not have been sustained. Cooley on Torts [2 Ed.], pp. 643-646; Bishop on Noncontract Law, sec. 605; St. Joseph v Railroad, 116 Mo. 637; Brannock v. Elmore, 114 Mo. 55; Haniford v. Kansas City, 103 Mo. 173; Chicago v. Robbins, 2 Black, 418. (3) The character of the work was such, that its necessary or probable effect would be dangerous to the public, unless precautions were taken to prevent accidents to persons using the street; and defendants could not relieve themselves of their duty to the public by employing independent contractors. Cases above cited and Water Co. v. Ware, 16 Wall. 566; Veazie v. Railroad, 49 Maine, 119; Darmsteatter v. Maynahan, 27 Mich. 188; Woodman v. Railroad, 149 Mass. 335. (4) Defendant McCauley admits in her answer that she had notice of the Phelps suit and defendant McCoy by his testimony, shows he had such notice, and the notice, proven to have been given to both Slack and McCoy was sufficient to make the judgment in the Phelps case conclusive in this case. Robbins v. Chicago, 4 Wall. 675; 2 Van Fleet's Former Adjudications, p. 1169, sec. 576; Drennan v. Bunn, 124 Ill. 175; Railroad v. Twiss, 35 Neb. 267; Heiser v. Hatch, 86 N.Y. 614; Portland v. Richardson, 54 Maine, 46; Troy v. Railroad, 49 N.Y. 657; Port Jarvis v. Bank, 96 N.Y. 550. (5) Defendant McCoy's general power and authority, as agent for defendant McCauley, relative to her property, the nature of the work, and his connection with it, makes him also liable. McNaughton v. Elkhart, 85 Ind. 384; Ellis v. McNaughton, 76 Mich. 237; Baird v. Shipman, 132 Ill. 16; Campbell v. Portland Sugar Co., 62 Maine, 552; Jenne v. Sutton, 14 Vroom (N. J.), 257; Mechem on Agency, sec. 571. (6) The court erred in excluding the testimony of Murphy, given in the former trial, and preserved in the bill of exceptions in that case. Caughlin v. Hausler, 50 Mo. 126; District of Columbia v. Gas light Co., 20 D. C. 39; Omaha v. Jansen, 35 Neb. 68; Yale v. Comstock, 112 Mass. 267. Greenleaf on Evidence [14 Ed.], secs. 163, 164.

Edward P. Gates for respondent Slack.

(1) The obstruction over which H. C. Phelps fell was not placed in the street by A. T. Slack or by anyone by his authority or over whom he exercised any control in the method or manner of doing the work. It was placed there by Stewart, an independent contractor. Crenshaw v. Ullman, 113 Mo. 633; Schweickhardt v. St. Louis, 2 Mo.App. 571; Blumb v. City of Kansas, 84 Mo. 112; Dillon v. Hunt, 82 Mo. 150; Fink v. Furnace Co., 82 Mo. 276; Long v. Moon, 107 Mo. 334; Clark's Adm'r v. Railroad, 36 Mo. 203; Hilsdorf v. St. Louis, 45 Mo. 94; McKinley v. Railroad, 40 Mo.App. 449; Pawlet v. Railroad, 28 Vt. 297; Water Co. v. Ware, 16 Wall. (U.S.) 566; Hilliard v. Richardson, 3 Gray (Mass.), 349; Overton v. Freeman, 11 Common Bench, 867; Wood on Master and Servant, pp. 598 to 610 inclusive. Even when the owner supervises the work or has it done, so that it may be done according to the contract, but does not retain control as to the method or manner of doing the work, he is not liable. Blumb v. City of Kansas, 84 Mo. 112; McKinley v. Railroad, 40 Mo.App. 457; Wood on Master and Servant, page 599. The construction of a stone sidewalk certainly was not unlawful nor necessarily a nuisance. Dillon v. Hunt, 82 Mo. 155. (2) A notice to defend must be distinct and unequivocal and expressly require the party to appear and take on himself the defense of the adverse suit, and he must have opportunity to control and manage the defense. Strong v. Ins. Co., 62 Mo. 289; Wheelock v. Overshimer, 110 Mo. 100; Garrison v. Trans. Co., 94 Mo. 130; St. Joseph v. Railroad, 116 Mo. 636. No notice was given to the defendant Slack, sufficient to bind him by the judgment rendered in the case of Phelps v. City of Independence. The record and proceedings in that case introduced in evidence were not admissible for any purpose as against Slack, and therefore plaintiff's case, as against him, is without any legal evidence as to the cause of the accident or the extent of the injury to Phelps, if any there was. (3) The evidence of the witness Murphy, taken in the case of Phelps v. The City of Independence, was not admissible in this case and was properly excluded. Leslie v. Rich Hill Coal Co., 110 Mo. 31; St. Joseph v. Railroad, 116 Mo. 636; Border v. Barker, 81 Mo. 636; Perry v. Moon, 24 Mo. 285; Carter v. Davis, 81 Mo. 668. (4) This respondent A. T. Slack was not, in any view of the case, a joint tort feasor with his codefendants. There is therefore a misjoinder of parties. 3 Sutherland on Damages [2d Ed.], p. 2309, sec. 1059; Sellick v. Hall, 47 Conn. 274; Wallace v. Drew, 59 Barb. 413; Van Steenburg v. Gray, 17 Wend. 562; Russell v. Tomlinson, 2 Conn. 206; Adams v. Hall, 2 Vt. 9; Chipman v. Palmer, 9 Hun, 517; Little Schuylkill Co. v. Richards, 57 Pa. St. 142. (5) The evidence does not show that any work or material whatever with which this respondent, Slack, had anything to do, caused the injury complained of. The excavation was guarded and Phelps did not fall into it. He fell over two stones lying in front of Mrs. McCauley's building. The evidence fails to show that these stones were ever used in Slack's sidewalk. If any presumption is to be drawn from their position, then they were used in Mrs. McCauley's sidewalk. Clearly Slack can not be held liable without some proof connecting him with the obstruction which caused the injury.

Joseph McCoy and Geo. A. Neal for respondents Wm. McCoy and Caroline McCauley.

(1) There being no substantial evidence to support a verdict against defendants McCauley or her agent McCoy, introduced by plaintiff in this case, it was the duty of the trial court to sustain the demurrer to plaintiff's evidence and instruct the jury to find for said defendants. Long v. Moon, 107 Mo. 337; Brannock v. Elmore, 114 Mo. 55. (2) If the defendants did not retain control over the means or manner of doing the work, or the right to direct the manner of the performance thereof, or undertake to provide any of the instrumentalities, they are not liable. It was the duty of the court to determine that question from the evidence and plaintiff's motion to set aside the nonsuit taken was properly overruled. Brannock v. Elmore, 114 Mo. 55; Roddy v. Railway Co., 104 Mo. 247; Larson v. Railway Co., 110 Mo. 234; Burns v. McDonald, 57 Mo.App. 601; Long v. Moon, 107 Mo. 337; Crenshaw v. Ullman, 113 Mo. 633; Fink v. Furnace Company, 82 Mo. 276; 2 Dillon, secs. 730, and note, 1030, 1029 and 1035. (3) Stewart was shown by the evidence to be an independent contractor over whom defendants as employers had no control. It was not the duty of such defendants to furnish a place to lay the stone prior to their being placed in position on the walk, or to guard the same. Norwich v. Breed, 30 Conn. 550; St. Joseph v. Railroad, 116 Mo. 644. (4) Defendants as employers of Stewart are not responsible for the negligence of Stewart, he having been given entire freedom in the use of the means to construct the sidewalk contracted to be done. Long v. Moon, 107 Mo. 339; Roddy v. Railway Co., 104 Mo. 248; Burns v. McDonald, 57 Mo.App. 601; Schweickhardt v. St. Louis, 2 Mo.App. 571; Morgan v. Bowman, 22 Mo. 538; Barry v. St. Louis, 17 Mo. 121; Blumb v. City of Kansas, 84 Mo. 112; Dillon v. Hunt, 82 Mo. 151; Smith's Whittaker on Negligence, 171; Speed v. Railroad, 71 Mo. 307. (5) In this case the testimony established that Stewart, the independent contractor, having entire control of the obstructions and sole possession thereof, was primarily liable; it then became incumbent upon plaintiff to show by the evidence that the work was unlawful per se, or that the usual or necessary method of doing such work was dangerous, or that such necessity arose during the progress of the work of which these defendants were duly notified. Plaintiff's petition should have alleged such unlawful and dangerous character of the work. Crenshaw v. Ullman, 113 Mo. 633; Long v. Moon, 107 Mo. 337; Burns v. McDonald, 57 Mo.App. 601; 14 Am. and Eng. Encyclopedia of Law, pp. 829-833; Robbins v. Chicago, 4 Wall. 657; Brannock v. Elmore, 114 Mo. 55. (6) Murphy, the contractor for McCauley's building, is not shown by the evidence submitted or by his own testimony, excluded by the court, to have superintended the work of Stewart, the sidewalk contractor; conceding that he was, as plaintiff contends, yet the demurrer to plaintiff's evidence was properly sustained. Larson v. St. Railway Company, 110 Mo. 234; Crenshaw v. Ullman, 113 Mo. 633, and cases and authorities cited. (7) Where the obstruction or defect caused or created in the street is purely collateral to the work contracted to be done and is the wrongful act of the contractor, the employer is not liable. Robbins v. Chicago, 4 Wall. 657. (8) Plaintiff in this case seeks to make defendants McCauley and McCoy indemnitors for the damages paid in the case of Phelps v. City of Independence. Indemnitor must have had notice of the litigation and an opportunity to control the...

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