Barry v. City Of St. Louis

• Decision Date: 31 October 1852
• Citation: 17 Mo. 121
• Parties: BARRY, Respondent, v. CITY OF ST. LOUIS, Appellant.
• Court: Missouri Supreme Court

17 Mo. 121

BARRY, Respondent,

v.CITY OF ST. LOUIS, Appellant.

Supreme Court of Missouri.

October Term, 1852.

1. Municipal corporations are not liable for damages occasioned by the negligence of contractors. To create such liability, the relation of master and servant must exist.

Appeal from St. Louis Court of Common Pleas.

John C. Richardson, for appellant. The city is not responsible for any injury sustained by the plaintiff through the negligence of the contractor. To make one person liable for an act or omission of another, the latter must be the servant of the party sought to be made liable. Milligan v. Wedge, 12 Ad. & Ell. 737. Quarman v. Burnett, 6 Mees. & Wels. 497. Rapson v. Cubitt, 9 Mees. & Wels. 710. Reedie, also Howitt v. London & N. W. Railroad Co., 4 Wels. Hurl. & Gord. 248-258. Knight v. Fox & Henderson, 1 Eng. Law & Eq. Rep. 480, decided in November, 1850. Allen v. Hayward, 53 Eng. Com. Law Rep. 959. The case of Bush v. Steinman, 1 Bos. & Pul. 403, has been repeatedly overruled in the English courts. The case of Leslie v. Pounds is unlike the present. It was expressly decided upon the ground that, though the defendant had leased the property, yet, the lessee not being then in possession, and the repairs being conducted under the superintendence of the defendant, he was responsible. See the opinion of Littledale, J. in Laugher v. Pointer, 5 B. & C. 547. The city of St. Louis could not have maintained an action of trespass for any injury to the sewer during its construction. The possession was in the contractor. Duke of Newcastle v. Clark, 4 E. C. L. R. 227. The leading American cases, invoked to sustain the first instruction given for the plaintiff, are Lowell v. Boston and Lowell Railroad Company, 23 Pick. 31. Mayor of New York v. Bailey, 2 Denio, 433. The case in 23 Pick. disposes very summarily of the question, upon the authority of Bush v. Steinman, which has been repeatedly overruled. The case in 2 Denio also relies upon Bush v. Steinman, but upon an analysis of the facts and arguments, it will be observed that it does not sustain the said instruction. In that case, the city of New York was engaged in the establishment of the Croton Water Works, as a private corporation, for emolument, &c. and a very just distinction has been taken between the acts of municipal corporations in the discharge of their legislative functions, and acts done by them in the prosecution of a private enterprise. This distinction has been recognized by this court in Gurno v. The City, 12 Mo. 414.

John A. Kasson and Duke, for respondent. In the eye of the law, the negligence, unskilfulness and carelessness of the agent or contractor under the defendant, are the negligence, unskilfulness and carelessness of the defendant, and the maxim, respondeat superior, applies. Bush v. Steinman, 1 B. & P. 407-8. Littledale v. Lonsdale, 2 H. Bl. 267, 299. New York v. Bailey, 2 Denio, 433. Lowell v. Boston and Lowell R. R. Co., 32 Pick. 24, 31. In the case at bar, the superintendence of the city is expressly reserved. The liability of the defendant, in cases of negligence and carelessness, does not appear to have been questioned in the court below. The following authorities amply establish the principle, if doubted. Thayer v. City of Boston, 19 Pick. 516. Mayor, &c., v. Furze, 3 Hill (N. Y.) 611. Chestnut Hill, &c., v. Rutter, 4 Serg. & R. 6. Goodloe v. Cincinnati, 4 Ohio, 414, 513. Rhodes v. Cleveland, 10 Ohio, 160. Riddle v. Proprietors, &c., 7 Mass. 187. Yarborough v. Bank of England, 16 East. 6. The same principle is conceded by implication in the case of Gurno v. City of St. Louis, 12 Mo. 424. Angell & A. on Corporations, pp. 313, 308.

Richardson, in reply. The case in 2 Denio has already been noticed and is reviewed in 12 Mo. Rep. 414. The case in 23 Pick. was against a private, not a municipal corporation. The point was almost conceded by the defendant's counsel and was disposed of by the court in a paragraph, upon the authority of Bush v. Steinman, which has been so often repudiated. The case of Lonsdale v. Littledale, 2 H. Black. 267, decided in 1793, has no application to the case at bar. There, the injury was charged to have been committed by the defendant's servants in the working of a mine. In Yarborough v. Bank of England, the only question was, whether an action of tort could be maintained against a corporation. In the case of Thayer v. City of Boston, it was only held that the city was liable for acts done by its authority, where similar acts would warrant an action against an individual. So far as that case has any application to the present discussion, it is in point for the appellant. In the case in 4 Serg. & Raw. 6, the question was, whether a corporation could be guilty of a tort, for it was admitted that the company gave authority to their servants to do the act complained of. In Bailey v. Mayor, &c., 3 Hill, 539, the court predicates the liability of the defendant on the ground that the city, in making the Croton Water Works, was acting in a private capacity, not as a municipal corporation. The case of Mayor, &c., v. Furze, 3 Hill, 612, only decides that the city, having made sewers, was bound to keep them in repair. The question of the liability of the city, for the acts or negligence of a contractor, was not raised. The case in 7 Mass. 187, and the Ohio cases, do not touch the question. For a long time it was doubted whether a corporation could be sued for a tort, but the courts now hold that their liability for the acts of their servants and agents is the same with that of individuals. The law is well established, that a private person is not responsible for the acts or negligence of a contractor under him. Neither law, justice, nor policy requires that the city should be liable, when an individual would not be.

RYLAND, Judge, delivered the opinion of the court.

The city of St. Louis contracted with Peter Brooks, for the construction of the Biddle street sewer. The general right was reserved in the contract, to the city engineer, to inspect the work, and watch the progress of its execution. The contractor was, for a consideration agreed upon, to furnish the materials and do all the work, including the necessary excavations. In the progress of the work, a deep trench was cut, and the plaintiff's intestate, Richard Barry, in his petition, charged that, as he was carefully walking in the night time down Biddle street from Broadway to the boat on which he was employed, he fell into the trench and broke his leg; that he was a stranger in the city and the accident occurred without any negligence on his part, but on account of the gross negligence of the defendant, in not furnishing lights or other warnings of the exposed condition of the street. At the instance of the plaintiff, the court instructed the jury that the city was liable for any injury the plaintiff had sustained by the negligence of the contractor, in not putting up sufficient barriers to warn or guard persons against the danger of attempting to pass down Biddle street in the neighborhood of the excavation. The propriety of this instruction raises the main question for the consideration of this court.

1. It was for a long time doubted, and even denied, that corporations could be sued for a tort, as they could not speak, except through their corporate seal; and the great struggle in the courts was, to put them on the same footing of liability as natural persons. Necessity requires that they should employ officers, servants and agents, and do their work oftentimes through contractors, and it is now well settled that, in many cases, corporations can be sued for a tort; that they can be guilty of negligence and be made responsible in damages in many cases, where natural persons would be liable, under like circumstances, for the acts or negligence of their agents or servants. But in our opinion, neither law nor policy requires the courts to go beyond the point they were so long reaching, by holding corporations liable, when, under similar circumstances, individuals would not be liable, for the acts or negligence of their servants, agents or contractors. It may be stated as a general proposition, that one person is not liable for the acts or negligence of another unless the relation of master and servant exists between them; and when an injury is done by a party exercising an independent employment, the person employing him is not liable. The only enquiry is, as to the relation between the parties. In support of this doctrine, the following authorities are cited: Milligan v. Wedge, 12 Adolph. & Ellis, 737. Allen v. Hayward, 53 E. C. L. Rep. 959. Quarman v. Burnett, 6 Mees. & Wels. 497. Rapser v. Cubitt, 9 Mees. & Wels. 710. Reedie, also Hobbitt v. London Railw. Co., 4 Excheq. 244. Knight v. Fox & Henderson, 1 Eng. Law and Equity Rep. 480. In Milligan v. Wedge, the defendant, who was the buyer of a bullock, employed a licensed drover to drive the bullock from Smithfield, for, by the laws of London, no one but a licensed drover could be so employed: the drover employed a boy to drive the bullock to the owner's slaughter pen, and through the carelessness of the boy, the mischief complained of was done by the bullock. It was held, that the owner was not liable; for the boy was not his servant, nor would he have been liable, if the drover, who had contracted to drive the bullock, had been driving at the time of the injury. Coleridge, Judge, says: “the true test is, to ascertain the relation between the party charged and the party actually doing the injury; unless the relation of master and servant exists between them, the act of one creates no liability on the other.” Williams, J., says: “the difficulty always is, to say whose servant the person is that does the injury; when you decide that, the question is solved.”

The defendant, in Rapser v. Cubitt, was employed to make certain alterations in a house, including the preparation and fixing of gas-fittings. H...