Allen v. Kraus
| Decision Date | 08 November 1948 |
| Docket Number | No. 40812.,40812. |
| Citation | 215 S.W.2d 739 |
| Parties | DOUGLAS ALLEN, AGNES ALLEN, RICHARD A. BOYLE, MARY BOYLE, OSCAR E. BUDER, EUGENIA H. BUDER, OTTO BUDER and MAMIE D. BUDER, Respondents, v. SAMUEL KRAUS and ALMA KRAUS, Individually and as Co-Partners Doing Business Under the Firm Name and Style of SAMUEL KRAUS COMPANY, Appellants. |
| Court | Missouri Supreme Court |
Appeal from Circuit Court of City of St. Louis. — Hon. Robert L. Aronson, Judge.
AFFIRMED.
Sullivan, Findley & Lucas and Ralph T. Finley for appellants.
(1) There can be no actionable negligence in the absence of a duty or obligation of the defendants to protect the plaintiffs from injury, a failure to discharge such duty, and injury proximately resulting from such failure. Whelan v. St. Louis Soft Ball Assn., 356 Mo. 622, 202 S.W. (2d) 891; Cameron v. Small, 182 S.W. (2d) 565. (2) The work to be done under the written contract was to be performed upon an existing structure in possession and control of plaintiffs, and by their contract, the plaintiffs impliedly represented that the structure should continue in existence and in position and condition for the doing of the work. 9 C.J.S. 962-963, sec. 466 (2); Haynes v. Second Baptist Church, 88 Mo. 285, 292; Haynes v. Second Baptist Church, 12 Mo. App. 536; Beattie Mfg. Co. v. Heinz, 120 Mo. App. 465, 97 S.W. 188; United States v. Gibbons, 109 U.S. 200; Sandy Hites Co. v. State Highway Comm., 347 Mo. 954, 149 S.W. (2d) 828. (3) This rule is followed in other jurisdictions. United States v. Spearin, 248 U.S. 132; Penn Bridge Co. v. New Orleans, 222 Fed. 737; Wm. Miller & Sons Co. v. Hospital Trustee, 243 Pa. 502; Canuso v. Philadelphia, 326 Pa. 302, 192 Atl. 133; Great Lakes Const. Co. v. Creosoting Co., 139 F. (2d) 456; Case Note, 53 A.L.R. 122. (4) Where the owner furnishes plans for work by a contractor, the contractor is not liable for defects or insufficiencies in the plan of work, or for defects resulting from the doing of the work, unless he assumes responsibility for such plans, and in this case defendants did not assume such responsibility or guarantee the safety of the plan of work. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954, 149 S.W. (2d) 828; A.H. White Co. v. Burglass, 184 So. 225; Canuso v. Philadelphia, 326 Pa. 302, 192 Atl. 133. (5) The plaintiffs cannot establish a duty on the part of defendants to stock-pile evenly or distribute the weight of the earth on the south half of the garage roof by showing a custom or practice to pile earth evenly or distribute the weight thereof on the roof. The written contract authorized defendants to stock-pile the earth on the south half of the garage roof, without restriction as to depth of piling the earth or distributing the weight thereof, and no duty can be implied contrary to the terms of the contract. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954, 149 S.W. (2d) 828. (6) No custom can be shown contrary to the terms of the contract or to change or vary the terms thereof, for to do so would be to make a new contract for the parties. State ex rel. v. Public Service Comm., 269 Mo. 63, 189 S.W. 377. Staroske v. Pulitzer Pub. Co., 235 Mo. 67, 138 S.W. 36; Kirkland v. Bixby, 282 Mo. 462, 222 S.W. 462; Jordan v. Daniels, 224 Mo. App. 749, 27 S.W. (2d) 1052. (7) The claimed custom was offered for the purpose of establishing a duty independent of the contract. In such case the custom must be pleaded explicitly, proved by evidence, and its existence submitted to the jury. None of these things was done. Martin v. Wabash Ry. Co., 325 Mo. 1107, 30 S.W. (2d) 735; Evans v. Santa Fe Ry. Co., 345 Mo. 147, 131 S.W. (2d) 604; Noyes-Norman Shoe Co. v. Cooper, 4 S.W. (2d) 486. (8) The evidence to establish the claimed custom, failing to show that the custom was definite, general, uniform, and certain, and applicable to a contract like that here involved, was wholly insufficient. Ehrlich v. Insurance Co., 103 Mo. 231, 15 S.W. 530; Porterfield v. American Surety Co., 201 Mo. App. 8, 210 S.W. 119; Leonard v. Dougherty, 221 Mo. App. 1056, 296 S.W. 263. (9) The plaintiffs cannot rely upon the theory of a negligent act, independent of the contract, because the petition attempts to state a cause of action for negligent breach of contract in the performance of said contract. Meade v. Railroad Co., 183 Mo. App. 353, 166 S.W. 1116; Hess v. Mfg. Co., 164 Mo. App. 153, 148 S.W. 179; Klingenberg & Son v. Davis, 219 Mo. App. 1, 268 S.W. 99; 1 C.J. 1015, sec. 138. (10) Since the petition pleads and relies upon breach of contract, no recovery can be had on the theory of independent tort. Wernick v. Railroad, 131 Mo. App. 37, 109 S.W. 1028; Kohnle v. Paxton, 268 Mo. 463, 188 S.W. 155; Lathinen v. Continental Bldg. Co., 339 Mo. 438, 97 S.W. (2d) 102; 1 Am. Jur. 449, sec. 57. (11) Even in a case where a plaintiff may waive the contract and sue in tort, the defendant may set up a controlling contract as a defense. Brown v. Frisco, 135 Mo. App. 624, 117 S.W. 112. (12) The petition does not sufficiently plead a modification of the original contract. No facts are pleaded showing an agreement for such modification, nor is any consideration therefor pleaded or shown by the evidence. American Contracting Co. v. Norton, 253 S.W. 372; State ex rel. v. Shain, 338 Mo. 1208, 93 S.W. (2d) 992. (13) But if the modification was properly pleaded, plaintiffs, having failed to prove the purported modification (58-61), cannot recover on the original agreement. State ex rel. v. Bland, 353 Mo. 639, 183 S.W. (2d) 878. (14) The sinking of the garage roof and foundations, and the consequence damages to plaintiffs, resulted solely from defects in the plan. The defendants are not responsible for defects in the plan of work prescribed by plaintiffs and agreed upon in the contract. Sandy Hites Co. v. State Highway Comm., 347 Mo. 954, 149 S.W. (2d) 828; Wm. Miller & Sons Co. v. Homeopathic Hospital, 243 Pa. 502, 90 Atl. 394 U.S. v. Spearin, 248 U.S. 132; Penn Bridge Co. v. New Orleans, 222 Fed. 737, 9 Am. Jur. 20, sec. 28; Case Note, 88 A.L.R. 797. (15) The plaintiffs were guilty of negligence as a matter of law in providing a defective plan of work. Furthermore, the plaintiffs were guilty of contributory negligence as a matter of law, because Mr. Allen knew at 5 P.M. on the day before the sinking the location and size of the pile of the earth and never objected to the manner of doing the work. Herring v. Franklin, 339 Mo. 571, 98 S.W. (2d) 619; Reynolds Co. v. Telephone Co., 152 Mo. 361, 133 S.W. 141; Farley v. Pettes, 5 Mo. App. 262; 38 Am. Jur. 879, sec. 199. (16) The plaintiffs being the owners and in possession of the garage were chargeable with any conditions with respect to the sufficiency of the foundations and roof of the garage which might cause damage under the contract, and are charged not only with facts actually known to them, but those which they had a conscious means of knowledge, including knowledge of the strength of the foundations, of the condition of their property, and provisions of the city ordinances with respect to the matters arising under the contract and work thereunder. McKeighan v. Kline's Inc., 339 Mo. 523, 98 S.W. (2d) 555; Summa v. Morgan Real Estate Co., 350 Mo. 205, 165 S.W. (2d) 390; Crane v. Liberty Foundry Co., 322 Mo. 592, 17 S.W. (2d) 945; Moore Mfg. Co. v. Railway Co., 256 Mo. 167, 165 S.W. 305; Hickman v. Union Electric Co., 226 S.W. 570; 39 Am. Jur. 238-240; 45 C.J. 653-655, sec. 27. (17) Where negligence is mutual, the plaintiff cannot recover. Hogan v. Citizens' Ry. Co., 150 Mo. 36, 51 S.W. 473; Zumwalt v. Railroads, 175 Mo. 288, 74 S.W. 1015; 45 C.J. 942-943, sec. 501; 38 Am. Jur. 866-867, sec. 190, note 15. (18) The evidence is insufficient to authorize a finding that the plaintiffs' damages were proximately caused by any negligence of the defendants. The sinking of the roof and the consequent damages resulted from the defective plan of work and the acts of the plaintiffs, as set forth for which defendants are not responsible. Giles v. Moundridge Milling Co., 351 Mo. 568, 173 S.W. (2d) 745; Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W. (2d) 924; 45 C.J. 930, sec. 490. (19) Plaintiffs' Instruction 1 does not submit any act of negligence amounting to wrongful performance of the contract, or the piling of the earth from more than the north half of the roof on the south half thereof, and what defendants are charged with doing under the theory of said instruction would be stock-piling as provided in the contract. Evans v. Massman Const. Co., 343 Mo. 632, 122 S.W. (2d) 924. (20) The verdict, under all the evidence, could be based only upon speculation and conjecture as to the condition of the soil, the strength of the foundations, the amount of the weight on the footings, the conclusions of plaintiffs' expert witnesses based upon unproved inferences and assumptions, the amount of plaintiffs' damages, and as to any act of defendants as being the proximate cause of the said damages. McAnany v. Henrici, 238 Mo. 103, 114 S.W. 633; Ambruster v. Realty & Inv. Co., 341 Mo. 364, 107 S.W. (2d) 74. (21) Plaintiffs' Instruction 1 erroneously fails to advise the jury as to the rights and obligations of the parties under the contract. Clark v. Railway Co., 64 Mo. 440; Harrison v. Franklin, 126 Mo. App. 366, 103 S.W. 585. (22) The said instruction has the effect of making a new contract for the parties. Staroske v. Pulitzer Pub. Co., 235 Mo. 67, 138 S.W. 36. (23) Said instruction is in conflict with defendants' Instruction 3 defining "pile" and "stock-pile" and in conflict with defendants' Instruction 4 with respect to non-liability of defendants if the roof would have sunk if the earth had been piled in accordance with plaintiffs' contentions. It is error to give conflicting instructions. McGrew v. Thompson, 353 Mo. 856, 184 S.W. (2d) 994; State ex rel. v. Shain, 341 Mo. 733, 108 S.W. ...
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