Gerber v. City of Kansas City
| Decision Date | 10 June 1924 |
| Docket Number | 23564,24224 |
| Parties | WILLIAM LEROY GERBER, by His Next Friend, WILLIAM L. GERBER, Appellant, v. CITY OF KANSAS CITY, UNITED STATES FIDELITY & GUARANTY COMPANY, and J. L. CROSS. WILLIAM LEROY GERBER, by His Next Friend, WILLIAM L. GERBER, v. W. D. BOYLE CONSTRUCTION COMPANY, Plaintiff in Error |
| Court | Missouri Supreme Court |
Opinion Modified and Motion to Modify Denied June 10, 1924.
Appeal in first case from, and Writ of Error in the second to Jackson Circuit Court; Hon. Samuel A. Drew, Judge.
Judgment against contractor and in favor of his sureties affirmed. Judgment in favor of city reversed and cause remanded
McCune Caldwell & Downing for plaintiff in error.
(1) The court erred in refusing to give the instruction in the nature of a demurrer to plaintiff's evidence requested by defendant W. D. Boyle Construction Company at the close of plaintiff's case and again in refusing to give said defendant's peremptory instruction at the close of all the evidence. Purcell v. Tennent Shoe Company, 187 Mo. 276; Furber v. Bolt & Nut Co., 185 Mo. 301; Coin v. Lounge Co., 222 Mo. 488; Warner v. Ry. Co., 178 Mo. 125; Knorpp v. Wagner, 195 Mo. 637; John v. Birmingham Realty Co., 172 Ala. 603; Travell v. Bannerman, 174 N.Y. 47; Gralka v. Worth Bros. Co., 245 Pa. 467; Chesapeake & Ohio Ry. Co. v. Rogers, 237 S.W. 18. (2) The court erred in failing to discharge the jury as requested by defendant and also in failing to reprimand counsel for plaintiff and to properly instruct the jury because of improper and highly prejudicial remarks made by said counsel in his closing argument to the jury. Neff v. City of Cameron, 213 Mo. 350, 18 L. R. A. (N. S.) 320, 127 Am. St. 306; Eppstein v. Mo. Pac. Ry. Co., 197 Mo. 720; State ex rel. v. Claudius, 1 Mo.App. 551; O'Hara v. Lamb Construction Co., 197 S.W. 163; Junge v. Pehl, 240 S.W. 278; Jackson v. Ry. Co., 206 S.W. 244; McDonald & Co. v. Cash & Hainds, 45 Mo.App. 66; Levels v. Railroad, 196 Mo. 606.
Atwood, Wickersham, Hill, Levis & Chilcott for William Leroy Gerber.
(1) The defendant owed to plaintiff the non-delegable primary duty of keeping its sidewalks and the space between the sidewalks and the property line reasonably safe for the use of plaintiff and other members of the public. This inherently dangerous explosive, fuse and cap had lain in the pile of dirt and exposed for more than two months prior to the injury. As a matter of law, such a length of time charged defendant with notice of the condition, and entitled plaintiff to a submission of defendant city's negligence to the jury, and the sustaining of the demurrer was error. Bassett v. St. Joseph, 53 Mo. 290; Welsh v. City of St. Louis, 73 Mo. 71; Wiggin v. St. Louis, 135 Mo. 558; Straub v. City of St. Louis, 175 Mo. 413; Coffey v. City of Carthage, 186 Mo. 573; Benton v. St. Louis, 217 Mo. 687, l. c. 693, 700; Capp v. St. Louis, 251 Mo. 345; Holman v. Clark, 272 Mo. 266; Hunt v. St. Louis, 135 Mo. 558; Straub v. City of St. Louis, 175 489; Ray v. Poplar Bluff, 70 Mo.App. 252; Fockler v. Kansas City, 94 Mo.App. 464; Schlinski v. St. Joseph, 170 Mo.App. 380, 387; Hutchinson v. Mullins, 189 Mo.App. 438; Miller v. St. Louis, 187 S.W. 46; Shippey v. Kansas City, 254 Mo. 1; Davis v. Wenatchee, 149 P. 337; City of Victor v. Smilanich, 131 P. 392; City of Chicago v. Murdock, 113 Ill.App. 656; Mathis v. Granger Brick & Tile Co., 149 P. 6; Market v. St. Louis, 56 Mo. 189; Brown v. City of St. John, 187 Mich. 641. (2) The fact that the boy pulled the fuse from that part of the pile of dirt which lay between the sidewalk proper and the property line is immaterial, because it was the duty of defendant city to keep the part of the street between the sidewalk and the property line free from this dangerous agency. Coffey v. City of Carthage, 186 Mo. 573; Miller v. St. Louis, 187 S.W. 45; Fochler v. Kansas City, 94 Mo.App. 464; Benton v. St. Louis, 217 Mo. 687. (3) Defendant city cannot escape liability on the ground of the work being done on the sewer ditch by a so-called independent contractor because: First, the city maintained supervision and control over the work and every detail as regards the mode, manner and method of doing the work; second, the use of high explosives in the blasting process of putting in the sewer was inherently highly dangerous, and being so the city cannot escape liability to the plaintiff and public by shifting the blame to an independent contractor. Morgan v. Bowman, 22 Mo. 538; Larson v. Metropolitan, 110 Mo. 234; Brannoch v. Elmore, 114 Mo. 55; Gayle v. Mo. Foundry Co., 177 Mo. 427; Speed v. Railroad, 71 Mo. 303; Loth v. Theater, 197 Mo. 328; Benton v. St. Louis, 217 Mo. 687; Jewell v. Nut & Bolt Co., 231 Mo. 176; Perry v. Ford, 17 Mo.App. 212; Scott v. Springfield, 81 Mo.App. 312; Mullich v. Brocker, 119 Mo.App. 332; Gray v. Coal & Coke Co., 175 Mo.App. 421; Johnson v. Threshing M. Co., 193 Mo.App. 198; Taylor v. Walsh, 193 Mo.App. 516; Pruitt v. Jewett, 225 S.W. 127; Gasden v. Craft Co., 20 A. L. R. 662; Davis v. Wenatchee, 149 P. 337; City of Victor v. Smilanich, 131 P. 392; City of Chicago v. Murdock, 113 Ill.App. 656; Mathis v. Granger Brick & Tile Co., 149 P. 6 (Wash) . (4) The court erred in directing a verdict in favor of the United States Fidelity & Guaranty Company and J. L. Cross, because under the terms of the bond furnished the city the plaintiff had a right to recover in this action against the bonding company. City of St. Louis v. Von Phul, 133 Mo. 561; Dever v. Howard, 144 Mo. 671; St. Louis v. Contracting Co., 202 Mo. 451; Kansas City to use v. Youman, 213 Mo. 151; School District v. Biggs, 147 Mo.App. 177; Moore v. Light Co., 163 Mo.App. 266; Lumber Co. v. Schwartz, 163 Mo.App. 659; Carson v. Blodgett, 189 Mo.App. 120; Fellows v. Kreutz, 189 Mo.App. 547; Hilton v. Construction Co., 202 Mo.App. 680; School District v. Liability Co., 234 S.W. 1017. (5) The court erred in refusing to admit testimony offered on behalf of plaintiff as to the insolvency and irresponsibility of the Boyle Construction Company. Lehigh Valley Coal Co. v. Yensavage, 218 F. 547 (Certiorari Denied, 235 U.S. 705); Copper Co. v. Crenshaw, 184 P. 996; Wallace v. Sou. Oil Co., 40 S.W. 399; Fehrenbacher v. Mining Co., 117 P. 870; Keech v. Lumber Co., 82 S.E. 836; Corrigan v. Huebler, 167 S.W. 159; Nelson v. American Cement P. Co., 84 Kan. 797. (6) While the judgment against the Boyle Construction Company may be an empty victory for plaintiff because of the absence of supersedeas bond, still we assert that no error was committed in the trial as to the Boyle Construction Company, and the judgment against it should be affirmed. Soeder v. Ry. Co., 100 Mo. 673; Settle v. Railway, 127 Mo. 336; Benton v. St. Louis, 217 Mo. 687; Fritz v. Railroad, 243 Mo. 62; Capp v. St. Louis, 251 Mo. 345; Yongue v. Railroad Co., 133 Mo.App. 141; Hardwick v. Wabash, 181 Mo.App. 156; Elevator v. Hines, 243 S.W. 140; Holt v. Railroad Co., 245 S.W. 1054; Choctaw v. McDade, 191 U.S. 64, 48 L.Ed. 96. (7) The trial court committed no error in its ruling upon the exception taken by defendant's counsel to closing argument of one of plaintiff's counsel. Norris v. Ry. Co., 239 Mo. 695, 721; Dutcher v. Railroad, 241 Mo. 137, 177; Ostertag v. Railroad Co., 261 Mo. 457, 479; Beall v. Rys., 228 S.W. 834, l. c. 837; Crockett v. Rys., 243 S.W. 907.
John B. Pew and Ilus M. Lee for Kansas City.
(1) Under the provisions of the written contract the construction company was an independent contractor, and, on the facts presented in this record, there can be no liability against the city, and the court did not err in sustaining the demurrer offered by the city. Blumb v. City of Kansas, 84 Mo. 112; Salmon v. Kansas City, 241 Mo. 14; Ege v. Brick & Construction Co., 118 Mo.App 630; Jackson v. Butler, 249 Mo. 342; McGrath v. St. Louis, 215 Mo. 191; Crenshaw v. Ullman, 113 Mo. 633; 1 Sherman & Redfield (6 Ed.) sec. 166; 14 R. C. L., sec. 16, p. 78; Marion Shoe Co. v. Eppley, 181 Ind. 219; Prest-O-Lite Co. v. Skeel, 182 Ind. 593; Foster v. City of Chicago, 197 Ill. 264; Pace v. Appanoose County, 168 N.W. 916. (2) Even though the evidence warranted the jury in finding that the fuse was at the place where plaintiff found it, through some negligent act of the construction company's employees, such negligent act would be wholly collateral to the contract work and could not, therefore, be chargeable to the city. Holman v. Clark, 272 Mo. 266; Salmon v. Kansas City, 241 Mo. 14, 42; McNamara v. City of New York, 129 N.Y.S. 230; Hanrahan v. Baltimore City, 114 Md. 517; Wilton v. Spokane, 132 P. 404. (3) The sewer ditch occupied the space between the sidewalk and curb. Dirt taken therefrom was piled on both sides of the ditch in such quantities as to make any use of the sidewalk (or adjacent roadway portion of the street) by pedestrians impossible. Plaintiff was not so using the sidewalk, and it therefore follows that the rule of law, requiring a city to exercise reasonable care to keep its sidewalks in a reasonably safe condition for travel, does not apply.
Ball & Ryland for United States Fidelity & Guaranty Company and J. L. Cross.
(1) There is no privity of relation between the plaintiff and the sureties; and the plaintiff can maintain no action in any event against these sureties. Kansas City ex rel. Blumb v. O'Connell, 99 Mo. 357; Howsman v. Trenton Water Co., 119 Mo. 314; Kansas City Sewer Pipe Co v. Thompson, 120 Mo. 218; Lewis v. Land Co., 124 Mo. 685; State v. Railroad, 125 Mo. 617; St. Louis v. Von Phul, 133 Mo. 573; Devers v. Howard, 144 Mo. 678; St. Louis v. Wright Construction Co., 202 Mo. 451, 464; Redditt v. Wall, 55 So. 45; Moss v. Rowlett, 112 Ky. 121; Taylor v. Dunn, 80 Tex. 673. (2) The city is not liable in this case. Carey v. Kansas City, 187 Mo. 715...
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