Ege v. Phœnix Brick & Construction Co.

• Decision Date: 04 June 1906
• Court: Missouri Court of Appeals
• Parties: EGE et al. v. PHŒNIX BRICK & CONSTRUCTION CO.

94 S.W. 999

118 Mo. App. 630

EGE et al. v. PHŒNIX BRICK & CONSTRUCTION CO.

Kansas City Court of Appeals. Missouri.

June 4, 1906.

1. MUNICIPAL CORPORATIONS—TORTS—ACT OF INDEPENDENT CONTRACTOR.

The fact that a contract for a street improvement gave the city engineer authority to direct at what point the work should commence, to see that it was properly done, and provided that if any one employed on the work should refuse to obey the engineer he should be

discharged, did not render the contractor the servant or agent of the city, and hence, the city was not liable for the negligence of the contractor.

2. SAME — UNLAWFUL WORK — LIABILITY OF CITY.

Where a municipality lets work to one who might otherwise be deemed an independent contractor, but the work is itself unlawful, or involves a trespass, the city is liable.

3. SAME—LIABILITY OF CONTRACTOR.

An independent contractor for a street improvement, sublet the contract without objection on the part of the city; the subcontractor deposited earth on another street and the owner of property abutting thereon sued the original contractor for damages. Held, that though the original contract provided that it should not be sublet, the original contractor was not liable.

Appeal from Circuit Court, Buchanan County; C. A. Mosman, Judge.

Action by Annie Ege and others against the Phœnix Brick & Construction Company, From a judgment in favor of plaintiffs, defendant appeals. Reversed.

C. F. Strop and Eugene Silverman, for appellant. W. B. Brown, for respondents.

ELLISON, J.

The defendant entered into a written contract with the city of St. Joseph to grade one of the streets of said city. It then sublet the work to Carr & Son, and the latter performed the contract. Plaintiff charges that in the course of the work an embankment was made in front of her property, situated on a nearby street, by depositing dirt thereon taken from the street upon which the work was done. She brought this action for damages against this defendant charging it with having made the embankment, and obtained judgment in the circuit court. The defendant itself did not do the work, and the parties have presented the question as to defendant's liability, which involves a consideration of whether Carr & Son were independent contractors, or merely agents of defendant in doing the work. The case is so made and presented by counsel.

The effect of the contract between this defendant and Carr & Son was that the latter took the place of the former in doing the work under the contract, which the former had with the city. The case as tried in the circuit court and presented here is made to turn upon a construction of the contact between defendant and the city of St. Joseph. In determining whether one who is employed by another to do work is an independent contractor in such sense as to free his employer from liability, where the work is not necessarily a trespass, the first and principal inquiry is whether there was the relation of master and servant. The contract between defendant and Carr & Son shows no such relation, nor, stated in another way, any relation of principal and agent. And, following the case, as presented, and going to the contract between defendant and the city, we find that there was no such relation between the city and defendant. The contract placed an obligation on defendant to perform the work therein named. By its terms the city engineer could direct at what point the work should commence, and we may concede that the engineer had general right to see that the work, as it progressed, was done according to the contract. More than this, the contract contained the following provision, viz.: That "if any person employed in the work shall...