Crenshaw v. Ullman
| Citation | 20 S.W. 1077,113 Mo. 633 |
| Parties | Crenshaw, Administratrix, et al., Appellants, v. Ullman |
| Decision Date | 31 January 1893 |
| Court | Missouri Supreme Court |
Appeal from Greene Circuit Court.
Reversed and remanded.
B. U Massey and Ethelbert Ward for appellants.
(1) Fannie S. Crenshaw, as administratrix of the estate of L. A D. Crenshaw, deceased, is the proper party to prosecute this suit commenced by L. A. D. Crenshaw in his lifetime. Revised Statutes, 1879, secs. 95, 96; Wiener v. Peacock, 31 Mo.App. 242; Rogers v. Tucker, 94 Mo. 346; Kellogg v. Martin, 62 Mo. 429. Answering to the merits, even after denying all the material allegations waives the defect of parties plaintiffs. Planing Mill v. Pres. Church, 54 Mo. 520. (2) The second count of the plaintiffs' petition states facts sufficient to constitute a cause of action. Bliss on Code Pleading [2 Ed.] sec. 229; Green-Meyer on Pleading, secs. 717, 718, 1327; 1 Hilliard on Torts [1 Ed.] pp. 578-580; Renshaw v. Lloyd, 50 Mo. 368; Ware v. Johnson, 55 Mo. 500; Brown v. Hartzell, 87 Mo. 564; Parker v. Shackelford, 61 Mo. 68; Austin v. Coal Mining Co., 72 Mo. 535. (3) D. C. Dade being the common source of title of both plaintiffs and defendant, the deed, passing from him down to plaintiffs, vests the legal title in plaintiffs. The validity of the transfer of property by or to a corporation de facto cannot be questioned in collateral proceedings. 2 Morawetz on Private Corporations [2 Ed.] secs. 707-711, p. 678, 692; Society Perun v. Cleveland, 43 Ohio St. 481; Thompson v. Candor, 60 Ill. 244; Hudson v. Green Hall Seminary Corporation, 113 Ill. 618. The Springfield Hotel Company was a corporation de facto. 2 Morawetz on Private Corporations [2 Ed.] 746, 777, and 778; Thompson v. Candor, 60 Ill. 244. (4) When the actual location of boundaries of land is disputed by conflicting testimony, it is a question of fact for the jury. St. Louis v. Meyer, 13 Mo.App. 367; St. Louis v. Meyer, 87 Mo. 276; Ott v. Soulard, 9 Mo. 581. (5) To make one an independent contractor, there must be no stipulations as to the mode and manner of doing the work, only the result looked forward to. Fink v. Furnace Co., 82 Mo. 276; Hilsdorf v. St. Louis, 45 Mo. 98; 2 Thompson on Negligence, sec. 2, p. 899. When control is retained over the manner and mode of doing the work, the contractor is not an independent contractor. Cincinnati v. Stone, 4 Ohio St. 42; Schwartz v. Gilmore, 45 Ill. 455; Paint & Color Co. v. Conlon, 92 Mo. 221; Howe v. Newmarket, 12 Allen, 49; Cooley on Torts, 546, et seq; 1 Shearman & Redfield on Negligence [4 Ed.] secs. 165, 169; Railroad v. Hanning, 15 Wall. 649. (6) One cannot, by any contract with an independent contractor, relieve himself of the responsibilities and duties devolving upon him as the owner of real estate not to do or suffer anything to be done on his property so as to injure others; so that the employer is liable for the acts or negligence of the independent contractor, where the act or negligence which occasioned the injury results directly from the work which the independent contractor agrees or is authorized or directed by the employer to do. 1 Parsons on Contracts [7 Ed.] 107; Cooley on Torts, 546-548; 1 Shearman & Redfield on Negligence [4 Ed.] sec. 174; Water Co. v. Ware, 16 Wall. 568; Hughes v. Railroad, 39 Ohio St. 463; Ellis v. Sheffield Gas Co., 2 El. & Bl. 767; Schwartz v. Gilmore, 45 Ill. 455; Lancaster v. Life Ins. Co., 92 Mo. 460. One cannot direct others to commit a trespass. Williamson v. Fisher, 50 Mo. 198; Ulman v. Railroad, 67 Mo. 118. (7) "It is the duty of the employer to use all reasonable care and precaution in providing plans and specifications to the end that a building, when constructed in accordance with them, would not be dangerous to adjoining property." Lancaster v. Life Ins. Co., 92 Mo. 460.
H. E. Howell and Goode & Cravens for respondent.
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 plaintiff's wall, and dug thereon and removed the dirt and stone from and along the wall of plaintiff's 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 eighteen 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 fourth day of February, 1884 by L. A. D. Crenshaw, deceased, and Martha E. Thomas, wife of her then co-plaintiff 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 defendants were co-terminous 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 plaintiff's 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 plaintiff's building and committed the injuries for which this suit is brought. Snavely sub-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 eighteen 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 misjoinder of parties plaintiff, in that Mrs. Crenshaw, as the administratrix of her husband's estate, and Mrs. Thomas have no community of interests 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. Revised Statutes, 1889, secs. 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, damage to the freehold as in this case, and Mrs. Crenshaw as administratrix of her husband was a proper party to be joined with her for that purpose.
The principal question involved in the first count of the petition in this case was, is the relation which Snavely sustained to the defendant that of independent contractor or servant? The witness W. F. Foley testified "that Thomas and Foley were to superintend the erection; that he was there from time to time acting as the agent for the defendant; that they had to see that the building was constructed according to the plans and specifications and that he was employed to superintend the work by Ullman." Snavely had the entire contract to erect the building according to plans and specifications furnished him by defendant.
If he Snavely, was an independent contractor then the defendant is not liable, but if the agent of defendant, and the work was done in an unskillful or negligent manner, then the defendant is liable. Mr. Thompson in his work on Negligence, volume 2, section 22, page 899, lays down the rule as follows: ...
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