Evans v. Massman Const. Co.

• Decision Date: 20 December 1938
• Docket Number: 35986
• Citation: 122 S.W.2d 924,343 Mo. 632
• Parties: Thomas W. Evans v. Massman Construction Company, a Corporation, Appellant
• Court: Missouri Supreme Court

122 S.W.2d 924

343 Mo. 632

Thomas W. Evans v. Massman Construction Company, a Corporation, Appellant

No. 35986

Supreme Court of Missouri

December 20, 1938

Appeal from Jackson Circuit Court; Hon. Daniel E. Bird Judge.

Reversed and remanded (with directions).

Garrett & Ruark, Walter A. Raymond and Hume & Raymond for appellant.

(1) There is no liability on the contractor for doing this work unless it was not authorized by the United States engineers or was of such a nature that it could not be authorized by the United States engineers. (2) Everything appellant did in the construction of the dike in question was done under the orders and supervision of the United States engineers and under either the express specification of the contract or within the power to modify reserved to the United States engineers. Compagnie Du Pont De Rio Janeiro v. Mead Morris Mfg. Co., 19 F.2d 163; United States v Spearin, 248 U.S. 132, 39 S.Ct. 59; Patten & Dumba v. Weightman, 51 Mo. 432. (3) The subsequent acceptance of the Massman Construction Company's work, and the contracting officer's written approval thereof constitutes a ratification of any modifications with reference to the use of a fender mat and the distance between the north end of the dike and the north bank. Crisp County v. Groves & Sons Co., 73 F.2d 327, 96 A. L. R. 391; St. Louis v. Ruecking, 232 Mo. 325, 134 S.W. 657; Aurora Water Co. v. Aurora, 129 Mo. 540, 31 S.W. 946. (4) There was no duty on the defendant to protect the plaintiff from damages from overflow of his lands caused by work of the United States government in improving the Missouri River for navigation. Larson v. Met. St. Ry., 110 Mo. 234, 19 S.W. 416; Varas v. Stewart & Co., 17 S.W.2d 651; Lambert v. Jones, 98 S.W.2d 752. (a) Appellant erected the dike in question for the United States government as a part of government work in improving navigation on the Missouri River. The work was done under the immediate supervision and exactly as directed by the United States engineers. The defendant therefore is immune from suit on account of such work. (b) The court erred in holding the departmental order of the United States engineers requiring a channel of not less than 200 feet to be left at the north end of dike 314.1 created a duty on defendant owing to the plaintiff. (5) Appellant's employees were entirely under the direction and control of the United States engineers in all the details of the work and were the servants of the United States. Appellant is not liable for the acts of its servants while they were not subject to its control but were under the control of the United States. Larson v. Met. St. Ry. Co., 110 Mo. 234, 19 S.W. 417; Clayton v. Wells, 324 Mo. 1176, 26 S.W.2d 973; Denton v. Yazoo & M. V. Ry. Co., 284 U.S. 305, 52 S.Ct. 141; Norfolk & W. Ry. Co. v. Hall, 57 F.2d 1007; Sun Oil Co. v. Dalzell Towing Co., 287 U.S. 291, 53 S.Ct. 136; McLamb v. Du Pont De Nemours & Co., 79 F.2d 967. (6) Work on the dike had been suspended for some time before the overflow, the work had been approved, accepted and paid for except the portion held back until the completion of the entire contract. The United States engineers were in charge of the dike and appellant was not in control thereof at the time of the overflow and could not be liable therefor. Williams v. Gillen Dock Dredge & Const. Co., 258 F. 593; Savings Bank v. Ward, 100 U.S. 204; Erie & Western Transportation Co. v. Chicago, 178 F. 46; Ford v. Sturgis, 14 F.2d 254; Cummings v. Halpin, 27 S.W.2d 721.

Henderson & Deacy and Prince & Beery for respondent.

(1) The negligent acts charged, to-wit, the use of a screen mat and the narrowness of the channel, were entirely beyond the scope of the contract between the defendant and the Federal government. The fact that the government's chief inspector -- a young man of two and one-half years' experience (age 25) did not restrain defendant, affords no justification. (a) A contractual obligation which creates a public duty, is actionable if violated. Lowry v. Kansas City, 337 Mo. 47, 85 S.W.2d 111. (b) Negligence outside a public improvement contract is also actionable. Plater v. Mullins Const. Co., 223 Mo.App. 650, 17 S.W.2d 664. (c) Where the injury is collateral to the work contracted for, and entirely the result of the contractor's negligence, the latter alone is liable. Wilkey v. Rouse Const. Co., 224 Mo.App. 495, 28 S.W.2d 677; McGrath v. St. Louis, 215 Mo. 191, 114 S.W. 618. (d) If the inspectors on this job gave orders beyond their authority, they would be joint tortfeasors, and liable with the contractor for the consequence. Neal v. Curtis, 328 Mo. 389, 41 S.W.2d 546. (2) "An independent contractor is a person who contracts with another to do something for him, but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." In determining whether an independent contractural relation exists, the contract must be construed as a whole. The right to supervise on the part of the employer, to the end of accomplishing the stipulated results, without dictating the manner of work or physical conduct, does not detract from the relationship. Salmon v. Kansas City, 241 Mo. 14, 145 S.W. 16; Gerber v. Kansas City, 304 Mo. 157, 263 S.W. 440; Barnes v. Hosiery Mills Co., 108 S.W.2d 60; Skidmore v. Haggard, 110 S.W.2d 726; Kurik v. English, 340 Mo. 367, 100 S.W.2d 901; Coul v. Peck Dry Goods Co., 326 Mo. 870, 32 S.W.2d 759; Casement v. Brown, 148 U.S. 615, 13 S.Ct. 675. (3) If a defendant's conduct is a substantial factor in bringing about harm to another, the fact that his negligence is not the sole cause, does not excuse him from liability, and the fact that he neither foresaw nor should have foreseen the extent of the harm, does not prevent him from being liable. Mrazek v. Term. Railroad Assn., 111 S.W.2d 30; St. Paul & Kansas City Railroad Co. v. U. S. F. & G. Co., 231 Mo. 613, 105 S.W.2d 21; Car v. Supply Co., 193 Mo. 562, 239 S.W. 827; State ex rel. v. Haid, 333 Mo. 76, 62 S.W.2d 402; Schneiter v. Chillicothe, 107 S.W. 1119; Christiensen v. St. Louis Pub. Serv. Co., 333 Mo. 408; Williams v. St. L. Pub. Serv. Co., 335 Mo. 335, 73 S.W.2d 199. (a) If the plaintiffs shows that defendant has been guilty of acts which might reasonably be found to have been the cause of an accumulation of a dangerous element, and further shows that there was a condition existing which might cause said dangerous element to occasion danger to others, which defendant by the exercise of reasonable care might have known, there can be no question but that there is sufficient foundation upon which a jury could find a negligent cause, and this is so even though there is evidence from which the jury could also reasonably find that another cause occasioned the damages. Cole v. Uhlman Grain Co., 340 Mo. 277, 100 S.W.2d 311.

OPINION

Lucas, J.

The plaintiff had judgment in the Circuit Court of Kansas City and the defendant appealed to the Kansas City Court of Appeals. The opinion of that court is reported in 115 S.W.2d 163. One of the judges of said court dissented and certified the cause to this court.

Plaintiff was a farmer in Carroll County and the defendant was a contractor engaged in constructing dikes in the Missouri River pursuant to contracts made between the government and the defendant. Pursuant to authority duly vested, the United States engineers designed a plan for the improvement of navigation of the Missouri River between Kansas City and the mouth of the river. Pursuant to authority vested in the United States engineers to carry out said plans, a contract dated December 22, 1930, was made between the government (through its contracting agency) and the defendant whereby the defendant was to construct certain dikes in the Missouri River near Sheep's Nose and Berlin Bend as well as to perform other work in said vicinity. There is no dispute about the validity of the contract between the parties. The contract was known as a contract for Standard Pile Clump Dikes, Standard Crib Dikes and Standard Revetment and the contract was worth $ 461,023.47. The contracting officer for the government was Theodore Wyman, Jr., Captain of Corps of Engineers. He was the same person who had designed the proposed improvements of the river at this point. The contract, among many other things, provided for the construction of about 8180 linear feet of standard pile clump dikes and said dikes were to be constructed by the contractor in accordance with specifications and drawings prepared and furnished by the government. The contract provided that the government (contracting officer) could at any time by written order make changes in the drawings or specifications and that if such changes increased or decreased the amount due under the contract that adjustment shall be made and the contract modified in writing accordingly; that any change increasing or decreasing the contract $ 500 or more must be in writing and approved by the head of the department and adjustments under said changes shall be determined as provided by the contract but that the contractor must proceed with the prosecution of the work regardless of the changes. The contract provided for complete inspection on the part of the government of all material and workmanship and provided that government inspectors should at all times be permitted to inspect and test the materials and work as the project progressed. The contract provided for its completion in 174 calendar days. The contract provided for monthly payments to the contractor, for all work that had been completed satisfactorily and upon which estimates had been approved by the contracting officer.

The contract was a standard form contract used by...