Appeal from St. Louis Circuit Court; Moses N. Sale, Judge.
Action by the Eaton & Prince Company against the Mississippi Valley Trust Company. From a judgment sustaining a demurrer to the complaint, plaintiff appeals. Reversed and remanded, with directions.
This appeal was taken from a judgment sustaining a demurrer to appellant's petition, which reads as follows: "Plaintiff, for its second amended petition herein, states that it is, and was at all times hereinafter mentioned, a corporation duly organized and existing under and by virtue of the laws of the state of Illinois, and that defendant is, and was at all said times, a corporation duly organized and existing under the laws of the state of Missouri. Plaintiff for cause of action states that heretofore, to wit, on the 13th day of October, 1898, one Margaretha Appel, as plaintiff, obtained a judgment in the circuit court of the city of St. Louis against plaintiff and defendant jointly, for the alleged wrongful and negligent killing of her husband, in the sum of $3,000 and costs, said judgment bearing interest from date, at the rate of 6 per cent. per annum, and said costs amounting to the sum of $106.95; that both plaintiff and defendant thereupon took a separate appeal to the St. Louis Court of Appeals from the judgment rendered in favor of said Appel. And, upon the hearing of said appeals by said Court of Appeals, that court first rendered a decision in which it held that, while the defendant herein was clearly liable in said action on account of its negligence, there was no negligence on the part of this plaintiff which would render this plaintiff liable. Thereupon the defendant herein filed in said Court of Appeals its motion for a rehearing, on which said motion `it contended that there was concurrent negligence of said defendant and this plaintiff, and that this plaintiff should be held equally responsible with the defendant herein. This plaintiff, as well as the plaintiff in that suit, resisted said motion for a rehearing; this plaintiff contending that the defendant herein was alone liable, and that the decision of said Court of Appeals was right. But said Court of Appeals granted the defendant herein a new hearing, and the cause was reargued, both in print and orally, by both the parties to this suit; each of them insisting that the other was solely liable to the plaintiff Appel. Thereupon the said Court of Appeals rendered a new and further decision, in which it again held that defendant herein was certainly liable in said action; and that while the liability of this plaintiff was not so certainly fixed, on the whole record, it should be held to an equal liability with the defendant herein. Whereupon the defendant herein filed a new and further motion in said Court of Appeals for a rehearing, in which last-mentioned motion it again urged and insisted that this plaintiff alone was liable, and that there was no evidence showing a liability on the part of the defendant here; but said last motion was by said Court of Appeals overruled, and it rendered a judgment affirming the aforesaid judgment of the circuit court of the city of St. Louis against both plaintiff and defendant, and sent down its mandate accordingly to said circuit court on the ____ day of February, 1903; that the said Margaretha Appel, in said action in
which said judgment aforesaid was recovered, set up as and for her cause of action against said defendant that whilst her husband, George Appel, was at work as a carpenter on the 24th day of November, 1897, in an elevator shaft of a certain building known as the `Burlington Building' in the city of St. Louis, and notwithstanding that it was agreed between said George Appel and said defendants, the Mississippi Valley Trust Company and Eaton & Prince Company, that the elevator in said shaft should not be run whilst he, the said George Appel, was so working in said shaft, the elevator in said shaft was by said defendants negligently and carelessly allowed and permitted and directed to be run and operated in said shaft, and negligently and carelessly allowed and permitted to be run up to the seventh floor of said building and to strike a scaffolding or platform on which said Appel was standing while so at work, knocking same to pieces and inflicting injuries upon said George Appel which resulted in his death on the 3d day of December, 1897; that it appeared in evidence on the trial of said cause of action that the Mississippi Valley Trust Company was the owner of the said building at the time in question, and was exercising a direct supervision and control over the execution of the very work on which said George Appel was engaged at the time of his injury, and that it negligently allowed said elevator to be run up in said shaft and strike said scaffold without notifying said Appel in time to enable him to avoid being injured, notwithstanding it had promised the said Appel and his employer that the said elevator should not be run whilst the said Appel was so at work, and that said Appel was injured thereby and thereafter died of said injuries, for which said negligence it, the said Mississippi Valley Trust Company, was adjudged liable to said Margaretha Appel as aforesaid; that it also further appeared in evidence that the Eaton & Prince Company was one of a number of independent contractors with said Mississippi Valley Trust Company, owner as aforesaid, at work in said building, and was engaged in putting elevators in said building, and that a certain servant of said defendant Eaton & Prince Company then at work in the basement of said building, who had knowledge of the dangerous position of the said George Appel, placed a stranger to said defendant Eaton & Prince Company in charge of said elevator, with directions to run it out of his, the said servant's, way, but without directions to go any particular distance, and negligently failed to give him warning of the presence of the workmen overhead and directions not to run it to the height where Appel was working; and that said stranger so placed in charge of said elevator, after taking the elevator out of the way of the said servant of said defendant, and stopping it at the second floor of said building, undertook to accommodate an outsider by carrying him in said elevator to the seventh floor, and whilst so engaged brought the said elevator in contact with the said scaffolding and caused the death of said George Appel as aforesaid, for which said negligence on the part of its said servant in so failing to warn said stranger so placed in charge of the said elevator, of the dangerous position of said Appel, the said Eaton & Prince Company was adjudged liable to said Margaretha Appel. Plaintiff states that thereafter on, to wit, the 13th day of March, 1903, it paid and discharged the said judgment, with interest and costs, in full, to wit, $3,795 for said judgment and accrued interest and $106.95 for costs, and had same satisfied of record in said court. Plaintiff states that said judgment was founded on an action for the redress of a private wrong as aforesaid; that it has demanded contribution of defendant for the moneys paid as aforesaid in satisfaction of said judgment, which has been refused by defendant; and that an action...
