McGrath v. City of St. Louis

• Decision Date: 15 December 1908
• Citation: 114 S.W. 611,215 Mo. 191
• Parties: McGRATH et al. v. CITY OF ST. LOUIS et al.
• Court: Missouri Supreme Court

114 S.W. 611

215 Mo. 191

McGRATH et al. v. CITY OF ST. LOUIS et al.

Supreme Court of Missouri, Division No. 2.

December 15, 1908.

1. MUNICIPAL CORPORATIONS (§ 751)—TRESPASS — LIABILITY—INDEPENDENT CONTRACTOR.

The contract for grading and paving a city alley required the work to be done "in conformity with the plan of such work on file." The plan showed a 10-foot alley along the north line of plaintiff's house. Previous proceedings had widened the alley from 9 to 10 feet, the additional width being obtained wholly on the north side of the alley. Held, that there was nothing in the contract which required the contractor to trespass on plaintiff's property, whereby his house was injured, to obtain the full 10 feet in width of the alley, so as to render the city a a joint tort-feasor with the contractor.

2. MUNICIPAL CORPORATIONS (§ 751)—TORTS —ACTS OF INDEPENDENT CONTRACTOR.

An inspector, employed by a city merely to see that the work of paving and grading an alley was done by the contractor according to contract, had no authority to order the contractor to excavate on land outside of the alley and outside of that called for by the contract, so as to render the city liable for injuries to adjacent property caused by the contractor's excavating thereon.

3. MASTER AND SERVANT (§ 315)—INJURIES TO THIRD PERSONS—ACTS OF INDEPENDENT CONTRACTOR—WORK INTRINSICALLY DANGEROUS.

A person having some work to be performed which is intrinsically dangerous to others is liable for injuries caused thereby, though the person employed by him to do the work and who commits the injury is an independent contractor.

4. MASTER AND SERVANT (§ 318)—INJURIES TO THIRD PERSONS—ACTS OF INDEPENDENT CONTRACTOR—SUPERVISION BY EMPLOYER.

An independent contractor must answer for his own and his servants' wrongs committed in the course of the work, though the person employing him had an agent employed to superintend the work and see that the contract was complied with.

5. MUNICIPAL CORPORATIONS (§ 751)—TORTS —ACTS OF INDEPENDENT CONTRACTOR.

Where a contract let by a city to an independent contractor for the grading and paving of a public alley specified that the improvement was to be made wholly within the alley, the mere fact that the wall of a house adjacent to the alley cracked and fell out in the alley as a result of the contractor's excavating under it was not alone sufficient to authorize recovery against the city.

6. MASTER AND SERVANT (§ 320)—INJURIES TO THIRD PERSONS—ACTS OF INDEPENDENT CONTRACTOR—PLANS OF WORK.

Where work required to be done by a contract let to an independent contractor can be done by a reasonably careful person, using such precaution as the law enjoins in the doing of the work, without causing injury to third persons, no right of action accrues on account of the plans alone.

7. MUNICIPAL CORPORATIONS (§ 742)—TORTS —CONSTRUCTION OF PUBLIC IMPROVEMENTS.

Where the plan prepared by a city for the improvement of a public alley required no unlawful thing to be done by the contractor for the work, the city was not negligent as a matter of law merely because the plan required an excavation wholly within the alley to be carried to a lower level than the foundation of a building adjacent to the alley.

8. MASTER AND SERVANT (§ 318)—INJURIES TO THIRD PERSONS—ACTS OF INDEPENDENT CONTRACTOR—LIABILITY OF EMPLOYER.

One who has contracted with a competent person exercising an independent employment for the doing of a piece of work, not in itself unlawful or attended with danger to others, according to the contractor's own methods, and without his being subject to control except as to the result, is not answerable for the wrongs of the contractor, his subcontractor or servants, in the prosecution of the work.

9. MASTER AND SERVANT (§ 316)—INJURIES TO THIRD PERSONS—"INDEPENDENT CONTRACTOR."

An independent contractor is one who renders services in the course of his 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.

10. MUNICIPAL CORPORATIONS (§ 751)—TORTS —ACTS OF AGENTS—PERFORMANCE OF MUNICIPAL CONTRACTS—INDEPENDENT CONTRACTORS—SUPERVISION OF CITY.

A power reserved by a city, in a contract for the construction of public work, to superintend the work and see that the contract is complied with, does not make the contractor an agent of the city or deprive him of his character of independent contractor.

11. MUNICIPAL CORPORATIONS (§ 733)—TORTS —PUBLIC WORKS—NOTICE.

Where the owner of a house adjacent to a public alley in which the city was lowering the grade and excavating knew of the excavation two weeks before the work reached the end of the alley where the house stood, that the work would occupy the whole width of the alley, that his house abutted immediately thereon and was above the established grade fixed by the engineer, and that it would require excavation right up to the wall of the house, and where he also knew the depth of the foundation of his house, which the city did not, his knowledge dispensed with any formal notice by the city of the commencement and progress of the work so as to enable him to support his building, where the plan for the grading of the alley did not call for a trespass or the commission of a nuisance, but only provided for a lawful improvement of an established highway.

Appeal from St. Louis Circuit Court; Matt G. Reynolds, Judge.

Action by Bridget McGrath and others against the city of St. Louis and another. From a judgment granting plaintiffs a new trial as to the defendant city after the court had sustained a demurrer to plaintiff's evidence as to such city, defendant city appeals. Reversed, with directions to set aside order granting new trial.

Charles W. Bates and Benjamin H. Charles, for appellant. H. A. Loevy, for respondents.

GANTT, J.

This action was brought by the plaintiffs, in the circuit court of the city of St. Louis, for damages to their residence, a story and a half brick house, occasioned by an excavation in an alley adjacent thereto, made by the Heman Construction Company in grading for a brick pavement under a contract with the board of public improvements of the city.

The petition, after certain formal allegations and a description of the property of the plaintiffs, charges both the contractor, the Heman Construction Company, and the city with having "carelessly and negligently dug and excavated in said public alley along and south of the southern line thereof, and did said work so carelessly and negligently as to undermine and cause the sinking, breaking, crumbling, and shattering of said house; * * * that defendants were negligent in the plan, method, and manner of doing said work in this, to wit, that the said excavation and digging was made just along and south of and under the north line of plaintiffs' said lot and north wall of their said house and fence, and was made and sunk to a distance so far south of and under the north line of the north foundation and brick walls of said building, and under the said fences, as to endanger the stability of said building and brick walls and fences, and make them part, break, etc., which the defendants well knew, or by the exercise of reasonable care could and would have known, was likely to occur as the result of their said plan, method, and manner of doing said work; that the defendants were further negligent in the conduct of said work in this, to wit, that they failed to properly support the said northern wall of the said building and adjoining fences, and failed to notify plaintiffs of the commencement or progress of the work, so that they could and should themselves support said wall and building and fence from and against the danger of falling or being otherwise injured, which the said defendant knew, or by the exercise of ordinary care would have known, threatened said building and fences from and by the work in which they were engaged. Plaintiffs state that they had no notice, did not know, and had no reason to believe at any time before the breaking and sinking of said walls or fences, or before said work was completed, that said defendants were making, or intended to make, said excavation beyond or further south in said alley than the south line of said alley as the same was and is fixed and established by law." Plaintiffs alleged a damage to the building of $3,000; the subsequent shoring thereof, at $150; rental paid out for another house, $20 per month; damage to household furniture, $300; expense of moving, $10; and prayed judgment for $4,500.

The city's answer consists, first, of a general denial, and, second, an allegation that the plaintiffs' building was in an insecure and unsafe condition: that the foundation thereof did not extend to a sufficient depth; that the foundation had not been constructed in a good and sufficient and workmanlike manner, and was not sufficient and strong enough to support the building constructed thereon; that the mortar contained in the wall and foundation was not suitable for the purpose for which it was used, nor of the proper kind and quality to make the said building secure, and that if any injury happened to said building it was the result of inherent weakness therein, and of the improper and unworkmanlike manner in which it had been constructed; that the said building's foundation and walls were not reasonably and sufficiently strong to withstand the excavation of the said alley to its grade established by the ordinances; that the plaintiffs knew of the weakness and insufficiency, and that this defendant did not know of the same; that the plaintiffs knew, or by the exercise of ordinary care could have known, of the establishment of the grade of said alley; that by Ordinance 20,703, approved June 20, 1902, the defendant city had provided for the grading, improving, and paving of the said alley immediately alongside of the property of plaintiffs; that said alley was a public...