Galber v. Grossberg

• Decision Date: 19 February 1930
• Docket Number: No. 28456.,28456.
• Citation: 25 S.W.2d 96
• Parties: SARAH GALBER v. BARNEY GROSSBERG and JENNIE GROSSBERG, Appellants.
• Court: Missouri Supreme Court

25 S.W.2d 96

SARAH GALBER v. BARNEY GROSSBERG and JENNIE GROSSBERG, Appellants.

No. 28456.

Supreme Court of Missouri, Division Two.

February 19, 1930.

Appeal from Circuit Court of City of St. Louis. — Hon. John W. Calhoun, Judge.

AFFIRMED.

Jones, Hocker, Sullivan & Angert for appellant.

(1) The verdict of the jury cannot be impeached by affidavits of third persons as to statements made by a juror and overheard by such third persons. Devoy v. Transit Co., 192 Mo. 197; 3 Graham & Waterman on New Trials, 1428; Green v. Terminal Railroad Assn., 211 Mo. 18; Pratte v. Coffman, 33 Mo. 71; State v. Rush, 95 Mo. 199; Meisch v. Sippy, 102 Mo. App. 566. (2) The relation of a witness to an insurance company can only be shown for the purpose of impeaching his credibility as a witness. Jablonowski v. Cap Mfg. Co., 279 S.W. 97. (3) There is nothing more prejudicial than to bring before a jury the fact that an insurance company is interested in the result. Melvin v. Cater, 299 S.W. 105. (4) When the facts essential to characterize an employment are undisputed, the question of the relation created is one for the court. Mallory v. Pure Ice & Supply Co., 6 S.W. (2d) 623; Kipp v. Oyster, 133 Mo. App. 716. (5) An independent contractor is one who renders service in the course of an occupation, representing the will of his employer only as to the result of his work, and not as to the means by which it is accomplished. Gayle v. Car & Foundry Co., 177 Mo. 427; Shearman & Redfield on Negligence, sec. 165; Diehl v. Fire Brick Co., 299 Mo. 655; Thomassen v. Water & Light Co., 312 Mo. 150; Timmermann v. Architectural Iron Co., 318 Mo. 421.

Foristel, Mudd, Blair & Habenicht for respondent.

(1) All of the appellate courts of this State have held that for plaintiff to have interrogated the panel about their relation to the Globe Indemnity Company without laying any foundation therefor would have subjected her to a motion to discharge the jury. Chambers v. Kennedy, 274 S.W. (Mo.) 726; Petit v. Sales Co., 281 S.W. (Mo. App.) 973; Pilkerton v. Miller, 283 S.W. (Mo. App.) 455; Kelly v. Sinn, 277 S.W. (Mo. App.) 360. (2) The court erred in refusing to allow plaintiff to interrogate the members of the panel on their relation to the Globe Indemnity Company. Schuler v. Can Co. (Mo.), 18 S.W. (2d) 42; Smith v. Star Cab Co. (Mo.), 19 S.W. (2d) 467. (3) The affidavit filed in support of the motion for a new trial was a proper means of bringing to the attention of the court the bias and prejudice and misconduct of Juror Kenney. Green v. Terminal Railroad Co., 211 Mo. 18. (4) The court erroneously went beyond the issues in giving the instruction of which respondent complains. Yawitz v. Novak, 286 S.W. (Mo.) 66; Krodelinger v. Bank, 300 S.W. (Mo. App.) 311. (5) The rule of independent contractor is inapplicable to the case founded on negligence of landlord in making repairs without the assent of the tenant. 16 Am. & Eng. Ency. Law, 200; 1 Tiffany on Landlord & Tenant 608 (2), 611; Northern Trust Co. v. Palmer, 171 Ill. 383; Nahm v. Newspaper Carrier, 87 S.W. (Ky.) 296; Pittsfield v. Shoe Co., 33 Atl. 807; Eberson v. Continental Inv. Co., 118 Mo. App. 67; Vollrath v. Stevens, 199 Mo. App. 5. (6) It is the right and duty of a trial judge in the exercise of his discretion to sustain a motion for a new trial whenever he believes there has not been a fair and proper trial and this court will not interfere with such exercise of discretion unless it clearly appears that his discretion has been abused. Cook v. Railroad, 56 Mo. 380; Gottschalk v. Wells, 274 S.W. (Mo.) 399; Vaught v. Mortgage Co., 389 S.W. (Mo. App.) 653; Best v. Life Assur. Soc., 299 S.W. (Mo. App.) 118.

HENWOOD, C.

The plaintiff filed this suit in the Circuit Court of the City of St. Louis, whereby she seeks to recover damages in the sum of $10,000, for personal injuries alleged to have been caused by the defendants' negligence. The jury found for the defendants and the case is here on their appeal from the action of the court in granting the plaintiff a new trial.

In her petition, the plaintiff alleges, in substance, that on August 28, 1925, she was living in a flat in the city of St. Louis as the tenant of the defendants; that, on the day mentioned, the defendants' agents and servants had been engaged in installing electric light wires in the flat, and, in so doing, had removed from the floor a board or a piece of the flooring, about three inches wide and several feet long, and left it standing on its edge in the opening and unfastened, and had strung along and under the floor, at that point, a number of wires; that, in the evening, after the defendants' said agents and servants had quit working on that day, she was tripped, and caused to fall, and seriously and permanently injured, by said board and said wires, while walking across the floor of the flat; that the defendants' said agents and servants were negligent in leaving said board and said wires in said condition; and that said negligence was the direct and proximate cause of her said injuries.

In their answer, the defendants deny the allegations of the petition, plead contributory negligence, and further plead that the work of installing said electric light wires was done by an independent contractor and that they are not liable for his negligence, if he was negligent.

The plaintiff's reply is a general denial of the allegations of the answer.

The facts pertinent to the appellate issues are undisputed. On August 28, 1925, and for about two years prior thereto, the plaintiff a widow about sixty years of age, lived in a second-story flat of three rooms, located at 4310 Page Boulevard in the city of St. Louis and owned by the defendants, as the tenant of the defendants. Two unmarried daughters lived with her. The defendants' rent collector notified the plaintiff that the defendants had arranged to install electric lights in the flat. The plaintiff objected to the installation of electric lights, because it would increase her rent, and she so advised the rent collector. The rent collector replied that she "had to let it go through," that "Mr. Grossberg wanted to put them in and raise the rent." Thereafter, on or about August 27, 1925, one Hazelwood and his helpers came to the flat and began the work of installing electric light fixtures and apparatus. During the progress of the work, on August 28, 1925, they removed a board or a piece of flooring, about three and a half or four inches wide, from the floor of the kitchen, near the entrance to the bath room. When they quit working on that day, they left this board resting "on a slant" over the opening, about five-eighths or seven-eighths of an inch above the level of the floor, and some wires strung along the opening in the floor. As they were leaving the flat on that day, one of them said to plaintiff: "Everything is all right." Later that day, about six o'clock in the evening, the plaintiff, while walking across the kitchen floor, near the entrance to the bath room, was tripped by one of said wires, and fell to the floor, and, as the result of her fall, suffered the injuries complained of. After the installation of the electric light fixtures and apparatus, the defendants increased the monthly rent charge for the flat from $25 to $30.

1. The defendants contend that their demurrer to the evidence should have been sustained, and that, therefore, the verdict and judgment in their favor should be reinstated, Independent regardless of the errors assigned by the plaintiff Contractor. as grounds for a new trial. The basis of this contention is that Hazelwood was an independent contractor, and, for that reason, the defendants are not liable for his negligence, nor the negligence of his helpers, if any, while engaged in doing the work in question.

Such is not the law. The plaintiff was entitled to the quiet, peaceable and undisturbed possession, use and enjoyment of the flat, which she occupied as the tenant of the defendants. The work of installing electric light fixtures and apparatus in the flat was done at the instance of the defendants and for their benefit. It was done not only without the plaintiff's consent but over her objection. Under these circumstances, Hazelwood and his helpers were the agents and servants of the defendants, so far as the rights of the plaintiff are concerned, and the defendants are liable for injuries to the plaintiff caused by the negligence of their said agents and servants in doing the work, whether Hazelwood was an independent contractor or not. [36 C.J. 65, sec. 687 et seq.; 16 Amer. & Eng. Ency. 200 (h); 1 Tiffany on Landlord and Tenant, 610, 611 (4); Wharton on Agency, sec. 485.] "One absolute prerequisite to the immunity of the landlord from...