Bond v. Weiner

• Decision Date: 07 May 1940
• Docket Number: 36548,36549
• Parties: James W. Bond v. Anna Weiner, Shaw Harber, and City of St. Louis, Defendants, Seidel Coal and Coke Company, Appellant. James W. Bond, Appellant, v. Anna Weiner, Shaw Harber, City of St. Louis, and Seidel Coal and Coke Company
• Court: Missouri Supreme Court

140 S.W.2d 25

346 Mo. 258

James W. Bond v. Anna Weiner, Shaw Harber, and City of St. Louis, Defendants, Seidel Coal and Coke Company, Appellant. James W. Bond, Appellant, v. Anna Weiner, Shaw Harber, City of St. Louis, and Seidel Coal and Coke Company

Nos. 36548, 36549

Supreme Court of Missouri

May 7, 1940

Appeal from Circuit Court of City of St. Louis; Hon. William C Connor, Judge.

Judgment against the Coal Company reversed and in favor of the tenant and owner of the premises adjacent affirmed.

George A. Hodgman and Robert S. Lindsey for Seidel Coal and Coke Company.

There was no evidence that this appellant ever assumed any liabilities of Samuel Seidel (except for $ 883.18, due on automotive equipment) or that Samuel Seidel ever owned more than two (2) shares of stock of the corporation. This appellant corporation cannot be held for any alleged negligence of Samuel Seidel, an individual, committed in the furtherance of his individual business or for any act of his employees or contractor. Shuffeldt v. Smith, 139 Mo 367, 40 S.W. 889; 8 Fletcher, Cyclopedia of Corporations, pp 356, 387, 409. Without contradiction the evidence showed that none of the three drivers who delivered the coal in question was in the employ of this appellant on September 27, 1935, and this appellant could not be liable for their negligence or the negligence of their employers. The undisputed evidence was that the only coal put in through the "south hole" was put in by drivers of the Eagle Hauling Company, which was shown by the evidence to be an independent contractor. The facts being undisputed, it was for the court to declare as a matter of law that the Eagle Hauling Company was an independent contractor. Baker v. Scott County Milling Co., 323 Mo. 1089, 20 S.W.2d 494; Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617; Gayle v. Foundry Co., 177 Mo. 446, 76 S.W. 992; Salmon v. Kansas City, 241 Mo. 14, 146 S.W. 16; Kourik v. English, 340 Mo. 367, 100 S.W.2d 901; Stein v. Battenfield, 327 Mo. 804, 39 S.W.2d 349; Sargent v. Clements, 337 Mo. 1127, 88 S.W.2d 174; Cooley on Torts (2 Ed.), p. 647. The delivery of the coal had been completed on the day before the accident, and there had been an acceptance by the purchaser, Shaw Harber. A contractor, after acceptance of the work by the owner, is not thereafter liable to third persons for damages subsequently sustained, even though caused by contractor's negligence in performance of contract. Hence the seller of the coal would not be liable after the completion of the delivery and the acceptance by the owner. 45 C. J. 884; Casey v. Hoover, 114 Mo.App. 47, 89 S.W. 330; Saxon v. St. Louis Transfer Co., 145 Mo.App. 693, 123 S.W. 104; Aker v. Kansas City, 104 S.W.2d 1055; Benjamin v. Met. St. Ry. Co., 133 Mo. 274, 34 S.W. 590. Under these circumstances the question of proximate cause was for the court, and on the issue alone appellant's demurrer to the evidence should have been sustained. 62 C. J., p. 1158, sec. 74; Henry v. St. L., etc., Ry. Co., 76 Mo. 288, 43 Am. Rep. 762; Iman v. Freund Bread Co., 332 Mo. 461, 58 S.W.2d 477; Boyd v. Logan-Jones D. G. Co., 340 Mo. 1100, 104 S.W.2d 348.

Lee, Fricke & Lee and G. A. Ryan for James W. Bond.

(1) Defendants permitted or licensed by the city to maintain coal holes in public sidewalks for personal use, owe the duty to the public, who have the right to use the sidewalk, to exercise reasonable care to keep it in a safe condition. This was a personal duty, from which they could not be relieved by imposing it upon another. As soon as the coal was unloaded, the duty of defendants in respect to the condition of the coal hole and cover commenced again. Benjamin v. Met. St. Ry. Co., 133 Mo. 284. (2) A single injury was inflicted upon plaintiff by one cause -- namely: the tilting of the cover. The damage being inseparable, each would be jointly or severally liable for the whole damage. Benjamin v. Met. St. Ry. Co., 133 Mo. 291. (3) Evidence of subsequent repairs was competent on the question of notice and knowledge. Bailey v. Kansas City, 189 Mo. 503; Brennan v. St. Louis, 92 Mo. 484; Wagner v. Gilsonite Const. Co., 220 S.W. 890; Derrington v. Southern Ry. Co., 40 S.W.2d 1069; Wallington v. Terminal Ry. Assn., 88 S.W.2d 367.

Moser, Marsalek & Dearing for Anna Weiner.

(1) The giving and reading to the jury of Instruction 9 offered by Anna Weiner did not constitute error. Benjamin v. Met. St. Ry. Co., 133 Mo. 274, 34 S.W. 590. (2) The trial court did not err in refusing to permit plaintiff to prove that repairs had been made to the coal hole cover subsequent to the accident in order to establish notice or knowledge on the part of the defendants of an alleged defective condition in such cover. Buckley v. Knapp, 48 Mo. 152; Hamill v. Jones, 315 Mo. 972, 287 S.W. 485; Fearey v. O'Neill, 149 Mo. 467, 50 S.W. 918; Alcorn v. C. & A. Ry. Co., 108 Mo. 81, 18 S.W. 188. (3) The demurrer offered by defendant Anna Weiner at the close of the entire case should have been sustained, because it conclusively appears that the alleged defect in the coal hole cover was not the proximate cause of plaintiff's fall and resulting injuries. Rose v. Biddle, 231 S.W. 946.

John L. Harlan and Wilton D. Chapman for Shaw Harber.

(1) There being no competent legal evidence as to any negligence on the part of respondent Shaw Harber, his demurrer at the close of the case should have been sustained, hence the verdict as to him was for the right party and should not be disturbed. (2) The alleged error with reference to the exclusion of the petition of plaintiff in the prior case, of course, would constitute no grounds for reversal as to respondent Shaw Harber. (3) The evidence with respect to the alleged condition of subsequent repairs was inadmissible. Brennan v. St. Louis, 92 Mo. 484; Alcorn v. C. & A. Ry. Co., 108 Mo. 81.

Edgar H. Wayman and Jerome Simon for City of St. Louis.

(1) The demurrer offered by the defendant, the city of St. Louis, at the close of plaintiff's case and renewed at the close of the entire case should have been sustained for the reason that there was a total failure of proof of notice on the part of the city, actual or constructive, of the condition which plaintiff claimed to have caused his fall and injury. Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Buckley v. Kansas City, 156 Mo. 16; Allen v. Kansas City, 64 S.W.2d 765. (2) Defendant city's instructions 15 and 16 correctly stated the law and were proper. They do not constitute reversible error. Carvin v. St. Louis, 151 Mo. 334; Baustian v. Young, 152 Mo. 317; Buckley v. Kansas City, 156 Mo. 16; Perrette v. Kansas City, 162 Mo. 238. (3) Evidence of subsequent repairs is inadmissible to prove negligence and is not competent on the question of notice and knowledge. Alcorn v. C. & A. Ry. Co., 108 Mo. 81, 18 S.W. 188; Brennan v. St. Louis, 92 Mo. 484.

Bradley, C. Hyde and Dalton, CC., concur.

OPINION

BRADLEY

Plaintiff brought suit to recover $ 15,000 damages for personal injuries alleged to have been sustained by falling into the south coal hole (there were two) in the sidewalk at 1722 South Broadway, St. Louis. His suit was against Anna Weiner, owner of the building; Shaw Harber, the tenant; the city, and Seidel Coal and Coke Company, a corporation. The jury found for plaintiff and against defendant, Seidel Coal and Coke Company, for $ 1750, and found for the other defendants. Both the Seidel Coal and Coke Company and plaintiff appealed. The Seidel Coal and Coke Company's appeal is No. 36,548, and plaintiff's appeal is No. 36,549. These appeals were first lodged in the St. Louis Court of Appeals, but were, on motion of both appellants, transferred here on the ground that the amount in dispute exceeds the sum of $ 7500. [Constitution -- Amendment 1884, Sec. 3; Sec. 1914, R. S. 1929, Mo. Stat. Ann., p. 2587.]

The Seidel Coal and Coke Company assigns error (1) on the refusal of its demurrer to the evidence at the close of the whole case; (2) on instruction 3 given for plaintiff; (3) on instructions 9 and 11 given for the owner and tenant; (4) on instruction 15 given for the city; and (5) on the exclusion of evidence.

Plaintiff, as appellant, assigns error (1) on alleged conflict in instructions; (2) on exclusion of evidence; and (3) on alleged inadequacy of verdict.

About noon, September 28, 1935, plaintiff was walking south on the sidewalk, east side of street, in front of 1722 South Broadway, and stepped his right foot on an iron coal hole cover, about 20 inches in diameter, in the sidewalk. The cover tilted downward, and plaintiff went down, struck the edge of the cover astride and was injured. He alleged that the cover was old, worn around the edge and was loose and unfastened, "not properly fitted, fastened, adjusted or locked, causing the same to be dangerous and likely to tilt and swing open when stepped upon by persons properly and lawfully using said sidewalk;" that the owner and tenant were negligent "in maintaining said public sidewalk with said circular hole or opening therein, in an unsafe and dangerous condition for foot travel thereon by reason of aforesaid condition of said iron cover;" that the city was negligent in that it "knew or by the exercise of due care could have known" of the condition of the coal hole and cover and did nothing about it.

Plaintiff alleged that, on the day prior to his injury, the defendant Seidel Coal and Coke Company, delivered some coal to the defendant tenant, and the negligence alleged as to the Seidel Coal and Coke Company is that its employees who delivered the coal and used the south coal hole to unload, "knew or by the exercise of due care could have known that said circular iron cover . . . was unsafe and dangerous and not...