Glaser v. St. Louis University

• Decision Date: 21 February 1927
• Docket Number: No. 19369.,19369.
• Citation: 293 S.W. 432
• Parties: GLASER et al. v. ST. LOUIS UNIVERSITY et al.
• Court: Missouri Court of Appeals

293 S.W. 432

GLASER et al. v. ST. LOUIS UNIVERSITY et al.

No. 19369.

St. Louis Court of Appeals. Missouri.

February 21, 1927.

Rehearing Denied March 15, 1927.

Appeal from St. Louis Circuit Court; John W. Calhoun, Judge.

"Not to be officially published."

Action by Virginia Glaser and another against the St. Louis University and the Widmer Engineering Company. From a judgment against the last-named defendant, it appeals. Affirmed.

Banister, Leonard, Sibley & McRoberts, of St. Louis, for appellant.

Laurence McDaniel and F. E. Williams, both of St. Louis, for respondents.

BENNICK, C.

This is an action to recover for damage alleged to have been done to a two-story brick building located at 3546 Caroline street in the city of St. Louis, the property of plaintiffs, during the construction of a dental school building for St. Louis University on a lot adjoining that owned by plaintiffs. Originally both St. Louis University and Widmer Engineering Company were named as party defendants. At the close of plaintiffs' case, however, the court sustained a demurrer to the evidence offered by St. Louis University, whereupon plaintiffs took an involuntary nonsuit as to such defendant. The verdict of the jury was in favor of plaintiffs and against defendant Widmer Engineering Company in the sum of $1,000. Subsequently, however, the sum of $128 was remitted by plaintiffs, and judgment was duly rendered for $872, from which Widmer Engineering Company, hereinafter referred to as defendant, after an unavailing motion for a new trial, has perfected this appeal.

As far as the issues before us are concerned, it suffices to say that all the pleadings were in conventional form.

There was substantial evidence that during construction of the dental school building the roof and fire wall of plaintiffs' building damaged, causing the roof to leak and certain plastering to fall; that wood, brick, mortar, and cement were allowed to fall and accumulate between the walls of the two buildings, causing the west wall of plaintiffs' building to become damaged and the paper to fall; that concrete was spattered over the front of plaintiffs' building; that, when the new building was nearing completion, a crack, extending down into the foundation, appeared on the north wall of plaintiffs' building; and that such damage resulted from the acts of workmen under the orders of defendant's general superintendent of construction.

It is first argued that the peremptory instruction in the nature of a demurrer to the evidence requested by defendant at the close of the entire case should have been given, for the alleged reason that defendant was enacting throughout solely in a professional capacity, as the agent or vice principal of St, Louis University in the supervision and direction of the construction work, and was not liable for the alleged negligent acts of workmen which brought about the damage of which complaint is made. The determination of this question obviously requires a review of the evidence bearing upon defendant's connection with the erection of the dental school building.

On May 3, 1922, a lengthy agreement was entered into between defendant, styled the "engineer," and St. Louis University, denominated the "owner," designating defendant therein as the agent of St. Louis University, and providing in general that defendant should prepare the necessary detailed drawings, secure or provide the necessary labor, materials, and equipment, direct the construction of the building, and enter into all contracts for the purchase of material and the hiring of labor, including all contracts with subcontractors, for a "fee" of $8,185, subject to certain additions or deductions, depending upon the actual net cost of the construction of the building. This contract appears to have been studiously drawn, with the intention of employing such phraseology therein that defendant might be able to evade the liabilities and obligations of an independent contractor.

The evidence disclosed that defendant did provide all labor and materials and entered into all agreements with the several subcontractors under the style, however, of agent for St. Louis University. A Mr. Crotty, who was superintendent of construction, was actively in charge of the conduct of the work under defendant's directions, and at regular intervals prepared the pay roll for submission to St. Louis University, by whom a check to cover same would be drawn and handed to defendant, who in turn made the actual payment of the wages to the workmen. Payment of Crotty's salary was also made in this manner. It appears that any changes in the plans and specifications for the construction of the building were made only after consultation between Crotty, representing defendant, and a Mr. Leaderer, representing St. Louis University, and that of any sum saved in the doing of the work, 80 per cent. was payable to St. Louis University and the remaining 20 per cent. to defendant, until a certain agreed figure was reached.

We concede that, if defendant preferred to act in a representative or professional capacity as the agent of St. Louis University in directing and supervising the construction of the dental school building, and wished to escape the liability that a general or independent contractor would incur for damage to adjoining property, and that if St. Louis University was willing to employ defendant in such capacity, there was no reason why the parties could not contract to such effect. But, on the other hand, if the actual facts in evidence disclosed that the relationship existing between the parties was in reality of such as to constitute defendant an indepenent contractor, with all the attendant obligations, the question of its liability for the damage to plaintiffs' property was properly one for the jury. In the consideration of a similar question in the case of Aubuchon v. Security Construction Co. (Mo. App. No. 19692) 291 S. W. 187 (not yet [officially] reported), we have recently had occasion to say that

"An independent contractor is one who carries on an independent business, and contracts to do a piece of work according to his own without being subject to the control of his employer as to the means by which the result is to be accomplished, but only as to the result of the work. Crenshaw v. Ullman, 113 Mo. 633, 20 S. W. 1077; McGrath v. City of St. Louis, 215 Mo. 191, 114 S. W. 611; Thomassen v. West St. Louis Water & Light Company (Mo. Sup.) 278 S. W. 979 Flori v. Dolph (Mo. Sup.) 192 S. W. 949; Gayle v. Missouri Car & Foundry Company Furnace Company, 82 Mo. 276, 52 Am. Rep. 376; Semper v. American Press, 217 Mo. App. 55, 273 S. W. 186; Burgess v. Garvin (Mo. App.) 272 S. W. 108; Kipp v. Oyster, 133 Mo. App. 711, 114 S. W. 538; Mullich v. Brooker, 119 Mo. App. 332, 97 S. W. 549; 39 C. J. 1315 et seq.

"A party who has contracted with a competent and fit person, exercising such independent employment, to do a piece of work, not in itself unlawful or attended with danger to others, according to such contractor's own methods, and without his being subject to control, except as to the result of his work, will, of course, not be answerable for the torts of such contractor or of his servants committed in the prosecution of such work. O'Hara v. Laclede Gas Light Company, 244 Mo. 395, 148 S. W. 884; City of Independence v. Slack, 134 Mo. 66, 34 S. W. 1094; Loth v. Columbia Theater Company, 197 Mo. 328, 94 S. W. 847, and cases supra...