Crenshaw v. Ullman

• Decision Date: 31 January 1893
• Citation: 113 Mo. 633,20 S.W. 1077
• Parties: CRENSHAW et al. v. ULLMAN.
• Court: Missouri Supreme Court

20 S.W. 1077

113 Mo. 633

CRENSHAW et al. v. ULLMAN.

Supreme Court of Missouri, Division No. 2.

January 31, 1893.

LIABILITY FOR TORTS OF SERVANTS OF INDEPENDENT CONTRACTOR — CORPORATION — INJURIES TO FREEHOLD — PARTIES.

1. An objection for misjoinder of parties plaintiff, where the defect does not appear on the face of the petition, cannot be raised by a general demurrer to the evidence, but must be raised by answer.

2. A woman who has the title to land may sue in her own name and right, after her husband's death, for damage to the freehold by reason of defendant's causing her building to fall by excavating on the adjoining lot during her husband's lifetime, though she could not recover for the loss of rents accruing in his lifetime without administering on his estate, and suing in that capacity for them.

3. In an action by the owner of a house and lot for damages to the freehold for injuries to the building thereon, the administratrix of the other owner is properly joined as a party plaintiff.

4. Where the owner of a lot, the title to which is in another, has let a contract to an independent contractor to erect a building thereon, reserving no control over the contractor's servants, he is not liable for the acts of such servants in excavating for the building so negligently as to injure the building on the adjoining lot; and it makes no difference that he employed an agent to superintend the work, and see that the contract was complied with.

5. Where a person not in the actual possession of a strip of land, the title to which is in another, without the latter's consent enters thereon by his agents, and excavates so as to injure the adjoining building of the owner, he is liable therefor; and it makes no difference that the person who actually committed the injury is an independent contractor with him, where the work is done with his knowledge and consent, and for his use and benefit.

6. A transfer of land by a de facto corporation is valid as against all parties except the state. Finch v. Ullmann, (Mo. Sup.) 16 S. W. Rep. 863, followed.

Appeal from circuit court, Greene county.

Action by Fannie S. Crenshaw, as administratrix, and Martha E. Thomas against Ludwig Ullman. Defendant's demurrer to the evidence was sustained, and plaintiffs appeal. Reversed.

Benj. U. Massey and Ethelbert Ward, for appellants. H. E. Howell and Goode & Craven, for respondent.

BURGESS, J.

There are two counts in the petition in this case. The first one is the common-law action on the case; the averments being that the agents, servants, and employes of defendant entered on defendant's lot adjoining plaintiffs' wall, and dug thereon and removed the dirt and stone from and along the wall of plaintiffs' building in a negligent, careless, and unskillful manner, so that it weakened the wall, which bulged out, cracked, and fell; and that by reason thereof they lost the rents of the building; and claim damages in the sum of $2,500. The second count avers that plaintiffs owned a strip of ground 18 inches wide on the east side of their building, extending the entire length thereof, and that defendant caused digging to be done thereon, by which the wall was undermined, weakened, and finally fell, to their damage in the sum of $2,500. This count does not charge negligence or unskillfulness on the part of defendant, nor does it aver that the plaintiffs were in the possession of the strip of ground at the time of the injury. This suit was commenced on the 4th day of February, 1884, by L. A. D. Crenshaw, deceased, and Martha E. Thomas, wife of her then coplaintiff, J. B. Thomas, her husband joining with her. Whatever title plaintiffs have in the property was vested in L. A. D. Crenshaw and Mrs. Martha E. Thomas. Crenshaw and J. B. Thomas have died since the suit has been pending; and, so far as Crenshaw was concerned, the suit was revived in the name of his administratrix, Mrs. Fannie S. Crenshaw. Plaintiffs and defendant were coterminous proprietors, claiming title to their respective properties from the same source. Defendant for the purpose of laying the foundation and digging a cellar under a building which he had undertaken to build on the lot immediately east of and adjoining the lot on which plaintiffs' hotel building in Springfield was situated, let the contract for the building to one Snavely, whose employes and servants, in digging and excavating the rock and dirt, undermined the wall of plaintiffs' building, and committed the injuries for which this suit is brought. Snavely let a portion of the work to other parties. Thomas and Foley were employed by defendant to superintend the work, and to see that the contract of Snavely was complied with. The answer is a general denial, and also sets up title in defendant in the 18-inch strip of ground, and charges plaintiffs with notice that the work was being done and contributory negligence. Replication was filed to the new matter set up in the answer. The evidence was conflicting as regards the allegations in both counts in the petition, and the material allegations in the answer. The trial court, after all the evidence had been introduced, sustained a demurrer to the evidence, and directed a verdict for defendant. Plaintiffs then filed their motion for a new trial, which being overruled by the court, they saved their exceptions, and appealed the case to the St. Louis court of appeals, from which last-named court it was certified to this.

The first point that defendant's counsel make in their brief is that there is a misjoinder of parties plaintiff, in that Mrs. Crenshaw, as the administratrix of her husband's estate, and Mrs. Thomas, have no community of interest in the rents which might have accrued before the death of J. B. Thomas, her husband, and were therefore improperly joined as plaintiffs, because he (Thomas) was entitled to the rents that accrued during his lifetime. There was no demurrer filed to the petition, nor was the question of misjoinder raised by answer. If in fact there is a misjoinder of parties plaintiff it should have been raised by answer, as it does not appear from the face of the petition. Rev. St. 1889, §§ 2043, 2047. It could not be raised by a general demurrer to the evidence. Pettingill v. Jones, 21 Mo. App. 210. But we do not think the objection well taken in any event, because while it is true that Mrs. Thomas could not recover for the loss of rents that accrued during the lifetime of her husband without administering on his estate and suing in that capacity for them, yet, as the title to the property was in her, she could certainly prosecute the suit in her own name and right after his death for damages done to it, even though done in the lifetime of her husband, that is, damages to...