Mallory v. Ice & Supply Co., No. 26332.

CourtUnited States State Supreme Court of Missouri
Writing for the CourtLindsay
Citation6 S.W.2d 617
Decision Date18 May 1928
Docket NumberNo. 26332.,No. 26333.
PartiesMARCUS MALLORY v. LOUISIANA PURE ICE & SUPPLY COMPANY, Appellant, and THOMAS J. HUMPHREYS, Appellant.
6 S.W.2d 617
MARCUS MALLORY
v.
LOUISIANA PURE ICE & SUPPLY COMPANY, Appellant, and THOMAS J. HUMPHREYS, Appellant.
No. 26332.
No. 26333.
Supreme Court of Missouri, in Banc.
May 18, 1928.

[6 S.W.2d 618]

Appeal from Hannibal Court of Common Pleas.Hon. Charles T. Hays. Judge.

AFFIRMED.

Hostetter & Haley and May & May for appellant Louisiana Pure Ice & Supply Company.

(1) The appellant ice company contends that the work that was being done at the time of the injury, and which caused the injury, was entirely in charge of and under the direction of defendant Humphries, who had the contract to erect the building in its entirety including the excavating therefor for a lump sum of money, according to plans and specifications drawn by a competent architect; that he furnished his own assistants and tools, and executed the work entirely according to his own methods in the manner of its accomplishment, without being subject to the control or orders of the ice company in respect to the details of the work, but only in the result — the finished product; that the work in hand was not intrinsically or inherently dangerous, but became so only by reason of the negligence of the contractor in the manner of doing it. From these premises, the following propositions are deducible: (a) Defendant Humphries was an independent contractor, and being such, was solely liable for his negligence; and (b) the fact that Humphries was an independent contractor being undisputed, and the injury being caused by his negligence, the court should have declared as a matter of law that the defendant ice company was not liable for the injury, the work in hand not being inherently dangerous. (2) Defendant Humphries was an independent contractor. 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. Mo. Car & Foundry Co., 177 Mo. 446; Thomassen v. Water & Light Co., 278 S.W. 980; McGrath v. St. Louis, 215 Mo. 210. (a) Where a person contracts with another, exercising an independent calling to do a work for him according to the contractor's own methods, and not subject to his control or orders, except as to the results to be obtained, the former is not liable for the wrongful acts of such contractor or his servants. Long v. Moon, 107 Mo. 338. The learned trial court should have ruled as a matter of law sustaining the demurrer for, "when the facts are undisputed, no doubt exists that the court may declare as a matter of law, whether or not one is an independent contractor, or merely a servant." Thomassen v. Water & Light Co., 251 S.W. 451; Gayle v. Foundry Co., 177 Mo. 427; Kipp v. Oyster, 133 Mo. App. 711; O'Hara v. Gas Co., 244 Mo. 395; McGrath v. St. Louis, 215 Mo. 213. (b) The digging of the trench in the proper manner, shoring it as the evidence disclosed it should have been, was not inherently dangerous to others, and where the danger to others arises, if at all, from the manner in which the digging was done, or the condition in which the old wall existed after it was undermined by the digging by the independent contractor; and if such contractor so negligently performed the task as to inflict injury upon the plaintiff by causing the wall to fall when it would not have fallen had the manner or method used in the digging of the trench been such as to protect the wall from falling, then the contractor is liable, and not the principal, and the court should have so held in a peremptory instruction. O'Hara v. Gas Co., 244 Mo. 409; McGrath v. St. Louis, 215 Mo. 213; Kipp v. Oyster, 133 Mo. App. 718; Press v. Penny & Gentles, 242 Mo. 98. (c) The work being done was not inherently dangerous. The defendant ice company is not liable for the injury complained of, because plaintiff was an employee of Goodman, an independent contractor, who was in the employ of, and under the immediate direction of Humphries, another independent contractor, whose sheer negligence in failing to protect plaintiff in the digging of the trench which in itself was not inherently dangerous, namely: in not shoring up the wall or taking the dirt out in sections and filling in with concrete caused the wall to fall and injure plaintiff. Salmon v. Kansas City, 241 Mo. 14; Carson v. Blodgett Constr. Co., 189 Mo. App. 129. The general rule is that one who has contracted with a competent and proper person, exercising an independent employment, to do a piece of work not in itself unlawful, or of such a nature that it is likely to become a nuisance, or to subject third persons to unusual danger, according to the contractor's own methods, and without being subject to control except as to the result of his work, will not be answerable for the wrongs of such contractor, or his servants committed in the prosecution of the work. McGrath v. St. Louis, 215 Mo. 210; Peters v. Railroad, 150 Mo. App. 735; Thompson on Negligence, sec. 621; 26 Cyc. 970. The work of digging the trench was dangerous only by reason of negligence in doing it in the manner in which it was done. Therefore, the liability was not on the owner, but on the independent contractor. Carson v. Blodgett Const. Co., 189 Mo. App. 126.

A.J. Murphy and Ras Pearson for appellant Humphries.

(1) Appellant's instruction in the nature of the demurrer offered at the close of the plaintiff's evidence should have been given. Crenshaw v. Ulman, 113 Mo. 633; McGrath v. City of St. Louis, 215 Mo. 191; Jackson v. Butler, 249 Mo. 342; Carson v. Construction Co., 189 Mo. App. 120; Gayle v. Mo. Foundry Co., 177 Mo. 627; Loth v. Theater Co., 197 Mo. 328, 354; Larson v. St. Ry. Co., 110 Mo. 234; Brannock v. Elmore, 114 Mo. 62; Salmon v. Kansas City, 241 Mo. 14; 39 Cyc. secs. 1517, 1518, 1521; Flore v. Dolph, 192 S.W. 949; Lawhorn v. Veterinary Laboratories, 252 S.W. 44; Borah v. Motor Co., 257 S.W. 145. (a) As to appellant Humphries the plans and specifications under which he was working provided: "Excavations and Foundations: The owner will do all excavating and will furnish foundation complete ready for the brick and superstructure." (b) Goodman was an independent contractor, having in charge all the digging and excavating called for in the plans and specifications, getting the foundation complete, ready for the brick and superstructure. (2) Instruction 2, given at the instance of respondent, is erroneous. Under the undisputed evidence that the Ice Company was Goodman's paymaster and paid him for all his work, the instruction was error so far as appellant Humphries is concerned. It is further erroneous because it leaves out the liability of the Ice Company under its contract with Goodman. (3) The verdict is exorbitant and grossly excessive.

Rendlen & White and Fred Wilkins for respondent.

(1) On consideration of a demurrer to the evidence respondent is entitled to the most favorable view of his case that the evidence warrants and of every reasonable inference therefrom. Larson v. Street Ry. Co., 110 Mo. 238. This is a case against owner who hired an independent contractor to excavate alongside a building, wall fell and damage ensued. Owner held liable. Madden v. Mo. Pac. Ry., 167 Mo. App. 143; Hulton v. St. Ry., 166 Mo. 645; Temple v. Railroad, 83 Mo. App. 69; Whittaker v. Railroad, 252 Mo. 452. (2) In a companion case on same accident, both appellants were held liable. Stanley v. Louisiana Ice Co., 279 S.W. 157. (3) Goodman was not an independent contractor. (a) The Ice Company and Humphries retained general control of the premises, they had power to and directed when, where and how the work actually should be performed. Humphries got down into trench and showed and directed men how to undermine the wall. Commanded them to do it. The removal of the earth was paid for by the yard without any pay or thought or contemplation that Goodman should have anything to do with walls or shoring or supporting them. He had nothing to do with filling the trench with cement. No provision was made for digging part, then filling a section and then digging another section. There was no fixed time for termination of the work, he only dug where and when and as directed. The Ice Company's architect and inspector laid out and told where to dig. This does not constitute Goodman an independent contractor, even though Goodman hired and discharged employees doing the digging, including the plaintiff, a laborer, and paid plaintiff out of money received from the Ice Company or Humphries received for doing the excavating. Stewart, architect for Ice Company, says shoring up entailed considerable expense. None was allowed or charged for by Goodman who testified the Ice Company was to take care of that, and which is not denied. Stanley v. Ice Co., 279 S.W. 157; Waldron v. Coal Co., 109 S.E. 729; Collias v. Bldg. Assn., 189 N.W. 866. (b) The burden was upon defendant to prove all the facts necessary to constitute Goodman an independent contractor. Waldron v. Coal Co., 109 S.E. 729; Kirkhart v. Gas Co., 86 W. Va. 79; Wright v. Goldheim, 169 N.W. 343. (4) If it be that Goodman could be said to be an independent contractor, still defendants and each of them are liable herein. (a) Where landowner engages an independent contractor to erect a building or do work thereon and the work is dangerous of itself or intrinsically or inherently dangerous, unless proper precautions are taken, the existence of an independent contract is no defense to an action against the landowner by third persons or employees of the contractor injured in the course of the construction or work. The duties and liabilities in such a case of the landowner, are non-delegable and the owner is not relieved by reason of contract with an independent contractor whose servant is injured in consequence and as a result of the necessarily dangerous character of the work that the owner was having done. No precautions were taken and provided by the...

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9 practice notes
  • State v. Davis, No. 28628.
    • United States
    • United States State Supreme Court of Missouri
    • May 18, 1928
    ...commit the crime made no difference with the criminality of the accused. The intent of the hired could not lessen the crime of the hirer. 6 S.W.2d 617 In Commonwealth v. Jacobs, 9 Allen (Mass.), 274, Judge GRAY said: "Whenever the law makes one step toward the accomplishment of an unla......
  • Zueck v. Oppenheimer Gateway Properties, Inc., No. 73226
    • United States
    • United States State Supreme Court of Missouri
    • May 3, 1991
    ...special or reasonable precautions against the inherent risks or dangers. In Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (banc 1928), this Court extended the inherently dangerous exception to an employee of the independent contractor, making the landowner vicario......
  • Mays v. Penzel Const. Co., No. 56464
    • United States
    • Court of Appeal of Missouri (US)
    • October 16, 1990
    ...in case of injury to an employee of the independent contractor arose again. In Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (banc 1928) the Supreme Court, without overruling Salmon, reached a different conclusion under the circumstances of that case. Mallory, an ......
  • Becker v. Donahue, No. 26281.
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1943
    ...Life Insurance Company, the judgment is therefore reversed." The cases of Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617, and Andres v. Cox, 223 Mo.App. 1139, 23 S.W.2d 1066, cited by plaintiff herein, as well as the case of Burgess v. Garvin et al., 219 Mo.Ap......
  • Request a trial to view additional results
9 cases
  • State v. Davis, No. 28628.
    • United States
    • United States State Supreme Court of Missouri
    • May 18, 1928
    ...commit the crime made no difference with the criminality of the accused. The intent of the hired could not lessen the crime of the hirer. 6 S.W.2d 617 In Commonwealth v. Jacobs, 9 Allen (Mass.), 274, Judge GRAY said: "Whenever the law makes one step toward the accomplishment of an unla......
  • Zueck v. Oppenheimer Gateway Properties, Inc., No. 73226
    • United States
    • United States State Supreme Court of Missouri
    • May 3, 1991
    ...special or reasonable precautions against the inherent risks or dangers. In Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (banc 1928), this Court extended the inherently dangerous exception to an employee of the independent contractor, making the landowner vicario......
  • Mays v. Penzel Const. Co., No. 56464
    • United States
    • Court of Appeal of Missouri (US)
    • October 16, 1990
    ...in case of injury to an employee of the independent contractor arose again. In Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617 (banc 1928) the Supreme Court, without overruling Salmon, reached a different conclusion under the circumstances of that case. Mallory, an ......
  • Becker v. Donahue, No. 26281.
    • United States
    • Court of Appeal of Missouri (US)
    • March 2, 1943
    ...Life Insurance Company, the judgment is therefore reversed." The cases of Mallory v. Louisiana Pure Ice & Supply Co., 320 Mo. 95, 6 S.W.2d 617, and Andres v. Cox, 223 Mo.App. 1139, 23 S.W.2d 1066, cited by plaintiff herein, as well as the case of Burgess v. Garvin et al., 219 Mo.Ap......
  • Request a trial to view additional results

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