Harvey v. O'Connor

• Decision Date: 04 May 1926
• Docket Number: No. 19329.,19329.
• Citation: 284 S.W. 171
• Parties: HARVEY v. O'CONNOR et al.
• Court: Missouri Court of Appeals

284 S.W. 171

HARVEY v. O'CONNOR et al.

No. 19329.

St. Louis Court of Appeals. Missouri.

May 4, 1926.

Rehearing Denied June 1, 1926.

Appeal from St. Louis Circuit Court, Frank Landwehr, Judge.

"Not to be officially published."

Action by Queen Harvey against Emma O'Connor and another. After defendant's demurrer to the evidence was sustained, plaintiff took an involuntary nonsuit, and from an order setting aside the nonsuit, and granting plaintiff a new trial, defendants appeal. Affirmed, and cause remanded.

James E. Garstang, John M. Hadley, and Carter, Nortoni & Jones, all of St. Louis, for appellants.

Claud D. Hall, of St. Louis, for respondent.

SUTTON, C.

This is an action to recover damages for personal injuries. At the conclusion of the plaintiff's evidence, the court sustained the defendants' demurrer to the evidence. Thereupon the plaintiff took an involuntary nonsuit, with leave to move to set the same aside. Afterwards the plaintiff duly filed her motion to set aside said nonsuit and to grant her a new trial in the cause. The court, by its order duly made and entered of record, sustained said motion, set aside said involuntary nonsuit, and granted plaintiff a new trial in the cause, on the ground that the court erred in sustaining the demurrer to the evidence. From said order the defendants appeal.

The defendants were the owners of an apartment building located at the southwest corner of Market street and Theresa avenue in the city of St. Louis. The plaintiff occupied the rear apartment on the first floor as tenant of the defendants. The front of the building was on Theresa avenue. The rear apartment occupied by the plaintiff consisted of a living room and kitchen. The Jack door of the kitchen opened on a small porch. There were wooden steps leading from the porch into the back yard. These steps were used by the plaintiff in going to and from the back yard. The steps were not used by the tenants of any of the other apartments in the building. The floor of the porch was about six and a half feet above the ground. Plaintiff occupied the apartment for about a year and a half prior to her injury. At the time she rented the apartment, the defendants agreed to put the apartment and the steps in good repair and keep them so. A few weeks prior to her injury, plaintiff asked the defendants to repair the steps and to make other repairs about the apartment, and they told her they would have the repairs made. The defendants engaged James B. Hogan, a carpenter, to make the repairs. Hogan employed another carpenter by the name of Parks to assist him in the work, and the two carpenters together proceeded to repair the steps. They commenced this work on October 4, 1923, in the forenoon. The plaintiff left home that morning before the carpenters arrived to attend a funeral, and returned home about 2 o'clock. In the meantime the carpenters had been at work in repairing the steps. In the progress of their work they had removed the steps from the building, made certain repairs on them, and replaced them in position, but had not yet attached the steps to the building, or secured them, so that they were safe for use by the plaintiff. On her return home from the funeral, the plaintiff, not knowing that the carpenters had been engaged in the work of repairing the steps, attempted to descend the steps in going from her apartment to the back yard. When she had descended to the second step from the top, the steps collapsed and fell to the ground, and the plaintiff was thereby caused to fall and receive the injuries for which she sues.

The petition charges that the plaintiff's injuries were caused by the negligence of the servants of defendants in charge of the repair work on said steps in placing and leaving said steps in position without being supported or secured, and in failing to put any barrier, notice, or warning of any kind at or near said steps, and in failing to give plaintiff any warning whatever to prevent or deter her from using said steps.

There is no question that there was ample evidence of negligence, and the demurrer was sustained on the sole ground that James B. Hogan, the carpenter engaged to do the work of repairing defendants' premises, was an independent contractor, and this is the question involved upon this appeal.

Plaintiff produced the defendant Ralph T. O'Connor and the carpenter James B. Hogan as witnesses in her behalf, who gave testimony pertinent to this question as follows:

Ralph T. O'Connor:

"I was the one that told James B. Hogan, the carpenter, that I wanted him to go to the apartment building, and anything he seen there that needed repairing to repair it — whatever he seen fit to repair it. Mr. Hogan had charge of the work, and he did the work, and he was paid for the work. That included whatever was done on these steps. I went there one time previous to the accident, and that was to tell the painter that I didn't want him to paint the shutters. That was the only time I was there. I was there maybe five minutes, something like that. I told Hogan to go there and fix it up, anything that needed fixing around there. He rendered me a bill for that. I paid the bill by check. I did not exercise any control over that work. I just told Mr. Hogan to go there and repair what he seen — what needed repairing to go ahead, and whatever he seen that needed fixing to go ahead and fix it. He said: `All right, I will.' He employed his own helper. Mr. Hogan paid for the material that was used, and he rendered me the bill for the work. I did not at any time go there and point out and tell him what to do. He charged me for the work, and sent me the bill when it was finished. He was not in my employ. He is a carpenter and builder. I paid Mr. Hogan also for his helper. He rendered me the bill, and I paid that bill. I paid his bills for labor. I paid for the labor. He sent me this bill here, and I paid it. There is labor and material on this bill, and I paid that. I authorized Mr. Hogan to do that work, and he did it satisfactorily to me, and I paid him for it. I did not inspect the work after it was done."

James B. Hogan:

"I am a carpenter. I have been in that business 20 years. I did some work for the defendants on or about October 4, 1923, on the premises at the corner of Theresa and Market. The work I did there was general repairs around the property. The arrangements I had for doing the work was just Mr. O'Connor's instructions to go out there and repair what I saw. I did not make any agreement with him about my compensation. I charged by the day, or the hour, for my work. I furnished labor, and I charged by the day for that labor. I had no definite piece of work assigned to me. I was just sent out there, and whatever I saw that was necessary to go ahead and repair it up. I was subject to the orders of Mr. O'Connor at all times. Mr. O'Connor simply directed me to go out and repair this property, and as to any further directions I had...