Mound City Paint & Color Co. v. Conlon

• Decision Date: 06 June 1887
• Citation: 92 Mo. 221,4 S.W. 922
• Parties: MOUND CITY PAINT & COLOR CO. v. CONLON.
• Court: Missouri Supreme Court

4 S.W. 922

92 Mo. 221

MOUND CITY PAINT & COLOR CO. v. CONLON.

Supreme Court of Missouri.

June 6, 1887.

NEGLIGENCE — CARELESS DIGGING.

The defendant, owner of property adjoining which a cellar was being dug, engaged A., who was digging the cellar under contract with B., to under-pin the wall of his house adjoining such cellar. Defendant ordered A. not to commence under-mining until the wall was properly under-pinned. A. disobeyed, by commencing before the shores were up, in consequence of which the wall fell, doing damage to plaintiff's property. Held that, as the evidence showed A. to be under the control of defendant, defendant was liable for his acts, though caused by disobedience of orders, and that instructions which hinged defendant's liability upon whether A. was at the time a servant of defendant or B., were misleading and erroneous.

Appeal from St. Louis court of appeals.

Action to recover damages done to plaintiff's goods by the fall of a wall caused by the alleged negligence of defendant. A Mr. Snyder, who was the contractor for the erection of a house adjoining the wall, employed one Archibald to do the cellar excavation. The owner of this property employed defendant to under-pin the wall. Defendant also made arrangements with Archibald to do the under-pinning. It is alleged by defendant that Archibald was not to do this work till defendant had shored up the wall, and that Archibald proceeded to work in disregard of these instructions, and caused the accident. Defendant claimed that Archibald was not to be his servant till this underpinning had been done, and asked and obtained the following instructions:

"Third. If the jury believe from the evidence in this case that the proximate cause of the fall of the building in question was the removal of the earth or foundation wall of the premises next adjoining on the south, and also believe from the evidence that one William Archibald removed, or caused said earth or wall to be removed, under a contract held by him for excavating a cellar on such adjoining premises, and not as the employe or under a contract with the defendant, then they will find for the defendant.

"Fourth. If the jury believe from the evidence in this case that the proximate cause of the fall of the building in question was the removal of the earth from under a part of the south wall of said building, and that such earth was removed, or caused to be removed, by one William Archibald, and that in removing, or causing such removal, said Archibald was not acting as the agent or employe of the defendant, or under his direction, then the jury will find for the defendant in this case. And the court instructs the jury that if they believe from the evidence that an arrangement was made between said Archibald and defendant, whereby said Archibald was to take charge for said defendant of under-pinning the south wall of said building, but that said employment of said Archibald was not to begin until the defendant had shored up said building, and that said building fell before said shoring up had been done by defendant, and before any direction had been given said Archibald by said defendant, as hereinbefore required, then said Archibald at the time of such fall was not the agent or employe of said defendant.

"Fifth. The court instructs the jury that although they may believe from the evidence that defendant, in pursuance of his employment by Charles Green, as administrator of the estate of Leon Boucher, deceased, employed or contracted with one William Archibald to under-pin the south wall of the building described in the petition, by excavating beneath the same and building a new wall underneath the foundation thereof; yet if they further believe from the evidence that said Archibald, by the terms of his contract, was not to begin the work of under-pinning said south wall of said building until defendant Conlon had first shored up or supported said wall by timbers to be by said Conlon placed against the same, and also that said building fell down before said Conlon had shored up, or supported, said south wall or building, then the court instructs the jury that they must find a verdict in favor of the defendant in this case, unless they shall also further find that said Conlon directed said Archibald to proceed with the work of under-pinning before he, said Conlon, had shored up said building."

Other facts appear in the opinion.

Phillips & Stewart and W. C. Marshall, for respondent. Madill & Ralston, for appellant.

BLACK, J.

The plaintiff, a corporation, brought this suit to recover damages done to its goods by the falling of the south wall of the brick building known as No. 704, on Twentieth street, in St. Louis. The wall, it is alleged, fell by reason of the negligence of defendant, who had been employed by the owner of the property to under-pin it. Mr. Snyder was the contractor for the erection of a new house on property south of and adjoining the wall, and he had employed Mr. Archibald to excavate the cellar, which had been done to the depth of nine feet, three or four feet below the wall to 704; but Archibald had left next to the wall a retaining bank of...