Eberson v. Continental Investment Co.

• Decision Date: 10 April 1906
• Citation: 93 S.W. 297,118 Mo.App. 67
• Parties: EBERSON, Appellant, v. CONTINENTAL INVESTMENT COMPANY, Respondent
• Court: Missouri Court of Appeals

93 S.W. 297

118 Mo.App. 67

EBERSON, Appellant, v. CONTINENTAL INVESTMENT COMPANY, Respondent

Court of Appeals of Missouri, St. Louis

April 10, 1906

Appeal from St. Louis City Circuit Court.--Hon. Matt G. Reynolds Judge.

REVERSED AND REMANDED.

Judgment reversed and cause remanded.

S. T G. Smith and Thomas S. Meng for appellant.

(1) Where a person contracts with another to perform a certain work the contractor cannot let the work out to another and escape liability, because the person to whom it is let stands in the position of an independent contractor. Prescott v LeConte, 82 N.Y.S. 411; Prescott v. LeConte, 178 N.Y. 585; Schutte v. United Electric Co., 68 N. J. Law 435; Lasker, etc., Co. v. Hatcher, 28 S.W. 404; Brennan v. Ellis, 70 Hun 472; Railroad v. Meador, 50 Texas 77; Randolph v. Feist, 52 N.Y.S. 109; Coleman v. Central Trust Co., 25 Miscel. 295; Wood on Master and Servant, sec. 316; Wharton on Agency, sec. 485. (2) A man who orders work to be executed, from which in the natural course of things injurious consequences must be expected to arise unless means are adopted by which they may be prevented, is bound to see to that which is necessary to prevent the mischief and cannot relieve himself from liability by employing an independent contractor. Dillon v. Hunt, 11 N. A. 246; Dillon v. Hunt, 105 Mo. 154, 16 S.W. 516; Crenshaw v. Ullman, 113 Mo. 633, 20 S.W. 1077; Wertheimer v. Saunders, 95 Wis. 573; Sulbacher v. Dickie, 51 How. Pr. 500; Randolph v. Feist, 23 Miscl. 650; Lasker, etc., Co. v. Hatcher, 28 S.W. 404; Robbins v. Chicago, 4 Wall. 657.

Lee Sale for respondent.

(1) The plaintiff's own evidence shows that he was guilty of negligence contributing to the injury in introducing into the building under the circumstances shown in evidence the goods which according to his claim were damaged by the rain, when he knew or ought to have known that he was taking the risk of their being damaged in case of a violent rainstorm. Rose v. Butler, 69 Hun 140; Cook v. Soule, 56 N.Y. 420; Klausner v. Herter, 36 Misc. (N. Y.) 869; Reiner v. Jones, 38 A.D. 441. (2) The undisputed evidence shows that the rainstorm and wind were not such as the contractor in the exercise of ordinary care should have anticipated, and that even if he had anticipated them he could not have prevented the damage by the exercise of ordinary care on his part. (3) Even if the evidence showed that the contractor was negligent and the plaintiff free from negligence, the defendant cannot be held responsible for the negligence of the independent contractors who were in no sense its servants. Burns v. McDonald, 57 Mo.App. 599; Morgan v. Bowman, 22 Mo. 538; Wiese v. Remmers, 140 Mo. 289, 41 S.W. 797; Jefferson v. Jameson & Morse Co., 165 Ill. 138; Blumb v. Kansas City, 84 Mo. 412; Fink v. Missouri Furnace Co., 82 Mo. 276.

OPINION

BLAND, P. J.

The action is to recover damages caused to plaintiff's goods by rainwater falling through a hole in the roof of the building occupied by him as tenant of the defendant. The premises are situated on North Second street, in the city of St. Louis, and were let to plaintiff, on August 1, 1901, for a term of five years, beginning on said date. The premises were used by plaintiff for the purpose of carrying on the business of manufacturing and dealing in paints. In respect to repairs the lease contained the following clause:

"Second. It [defendant] has the title to said premises and good right to make this lease; (3) It will put said lessee in possession of said premises, and will permit him, his legal representatives and assigns, to quietly hold and enjoy them during said term; (4) It will keep the foundation, the walls (except openings) cornices, guttering and downspouts, the roof and the exterior of the buildings on said premises in good condition for the purposes of the tenancy hereby created; (5) in the event of the partial destruction of said buildings, it will as speedily as possible restore them to a condition similar to and equally as good as on the day preceding such partial destruction; (6) that in case of the partial destruction of said buildings so as to render them or any portion of them untenantable, a pro rata proportion of said rent shall be remitted or returned to said lessee until such time as they are again tenantable, and (7) said lessee may, at the expiration of the term hereby created remove from said premises all fixtures and machinery placed therein at his cost, for the prosecution of his business, excepting the elevator and appurtenances thereto, introduced by said lessee, which are to remain and to be left intact as part of the consideration for this lease."

On the night of June 13, 1902, a fire, originating from an unknown cause, broke out on the top floor of the building and burned a hole in the roof, of the dimensions of about seven thousand square feet. After the fire insurance on the building was adjusted, defendant, on June 18, 1902, let a contract to Hogg & Reed to restore the roof for a lump sum of money. The hole in the roof had been protected by spreading a tarpaulin over it, until Hogg & Reed undertook to restore it. While the work of restoration was in progress, tarpaulins were used to protect that portion of the roof immediately over the part of the building used as an office by plaintiff, and to prevent rain from blowing into this part of the building, a board partition was built from the top floor to the roof. Hogg & Reed began the work of restoration immediately after the contract was let to them. The evidence shows that the season was a rainy one and that rain fell on the eighteenth, nineteenth, twentieth, twenty-fourth, twenty-fifth and twenty-sixth of June, but these rains did no damage to plaintiff's goods. On the night of the twenty-seventh and the following day, four and seventy-one hundredths inches of rain fell and, the roof having been left partially uncovered by Hogg & Reed, water poured through the opening and flooded the entire building, causing damage to plaintiff's merchandise, office furniture, etc. The suit is to recover for these damages.

The answer pleaded contributory negligence, as an affirmative defense, and alleged that Hogg & Reed were independent contractors for whose negligence, if they were negligent, defendant was not liable.

The evidence tends to show that on the night of June twenty-seventh, the wind attained a velocity of fifty-nine miles an hour and would have stripped the roof of tarpaulins had they been placed thereon; it also tends to show that the fire walls of the building extended two and one-half feet above the roof line and that tarpaulins would have been entirely inadequate to hold back or discharge the volume of water that fell on the night of June twenty-seventh and the day following; it also shows that plaintiff continued...