Salmon v. Kansas City

• Citation: 145 S.W. 16,241 Mo. 14
• Parties: JOHN SALMON, Plaintiff in Error, v. KANSAS CITY
• Decision Date: 29 February 1912
• Court: United States State Supreme Court of Missouri

145 S.W. 16

241 Mo. 14

JOHN SALMON, Plaintiff in Error, v. KANSAS CITY

Supreme Court of Missouri

February 29, 1912

Appeal from Jackson Circuit Court. -- Hon. H. L. McCune, Judge.

Affirmed.

N. F Heitman for plaintiff in error.

(1) The law is strongly and intelligently stated in the leading case of Linnehan v. Rollins, 137 Mass. 123. The same principle is applied in Scott v. Springfield, 81 Mo.App. 312. The power of control is the cause, the liability of the city is the effect. Liability follows control. An interesting case in point is the City of Chicago v Dermody, 61 Ill. 431. Joliet v. Harwood, 86 Ill. 110, is a blasting case. The opinion has been approved and followed in Illinois, and the case has been cited with approval in Massachusetts. Harding v. Boston, 163 Mass. 14. The case was approved in Jefferson v Chapman, 127 Ill. 444; Gas Co. v. Myers, 168 Ill. 146; Chicago v. Murdock, 212 Ill. 12; Harper v. Milwaukee, 30 Wis. 365. This last case decides that the fact that the sewer was to be constructed under a contract will not relieve the city from liability if the contractor acted as its agent and subject to its control as to the mode of performing the work. If a public work is constructed under an independent contract (lawfully entered into by the city) the municipal authorities having no control over the mode of doing the work of blasting, then the contractor alone would be liable for such injury. (2) The relation of master and servant exists where the city may select the blasting workmen, and may order not only what blasting work shall be done but the mode and manner of performance. This contract uses this language: Blasting "work to be done in strict obedience to the directions which may from time to time be given by the city engineer or his authorized agents." The Construction Company was not an independent contractor. The word "independent" means "independent" and not "dependent." (3) The contract in this case provides that the contractor should obey all of the ordinances of Kansas City pertaining to the work of blasting. One of these ordinances requires a licensed blaster on the work. Although the city had perfect power of control over this matter of requiring an expert blaster, it neglected to exercise such power of control and neglected to compel obedience to said reasonable ordinance which became a part of this contract. This negligence of the city was the cause of the injury. The failure to have an expert blaster was a divergence from the contract just as in the Illinois case cited. Another provision of the contract was: "The contractor shall not blast any rock or allow the same to be done on this work without taking such precautions as shall prevent damage and injury to person." The city retained power of superintendence over the blasting and the city had the power to compel the contractor to take precautions to prevent injury to the plaintiff, and had the power and the duty to compel the employment of a licensed blaster. The city negligently permitted a divergence from the contract in this respect. This case is therefore like the Illinois case. The city is not liable for non-enforcement of its ordinances as a general rule, but there is an exception to this rule, and this case comes within the exception, for the reason that in the Donohue case in 136 Mo., sewer construction is held to be the private business of Kansas City, and hence when engaged in that sort of business its ordinances establish a standard of care for it, just like the rules and regulations of the railroad company established a standard of care for the railroad company in the case in 84 Mo.App. The general rule is unquestioned; the exception is just as distinct and clear. Jones v. City of New Haven, 34 Conn. 1; Dickinson v. Boston, 188 Mass. 595; Commissioners v. Parks, 155 Mass. 531; Jones v. City of New Haven, 34 Conn. 1; Cooper v. Seattle, 16 Wash. 462; Fink v. St. Louis, 71 Mo. 52; Springfield v. LeClaire, 49 Ill. 476; Chicago v. Murdock, 212 Ill. 12; Wagner v. Rock Island, 146 Ill. 139; Fink v. St. Louis, 71 Mo. 52; Cooper v. Seattle, 16 Wash. 462; Harper v. Milwaukee, 30 Wis. 365; Logansport v. Dick, 70 Ind. 65; Ray v. Poplar Bluff, 70 Mo.App. 252; Jones v. New Haven, 34 Conn. 1.

John G. Park, John T. Harding, Hunt C. Moore, A. F. Smith and Francis M. Hayward for defendant in error.

(1) The general rule as to third parties is that one who has contracted with a competent and fit person, exercising an independent employment, to do 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 results of his work, will not be answerable for the wrongs such contractor, his subcontractor or his servants committed in the prosecution of such work. 2 Thompson on Negligence, sec. 22, p. 899; Gayle v. Foundry Co., 177 Mo. 446; Crenshaw v. Ullman, 113 Mo. 633. (2) The Construction Company, under the contract set forth in plaintiff's petition, was an independent contractor and though the city had the right to supervise the work, to see it complied with the contract, yet such company represented the employer only as to the result of the work and not as to the means by which it was accomplished. Blumb v. Kansas City, 84 Mo. 112; Crenshaw v. Ullman, 113 Mo. 633; McGrath v. St. Louis, 215 Mo. 211; Ege v. Brick Co., 118 Mo.App. 630; Hobbitt v. Railroad, 4 Exch. 244; Edmundson v. Railroad, 111 Pa. St. 316; Staldter v. Huntington, 153 Ind. 354; Uppington v. New York, 165 N.Y. 222; Frolich v. New York, 199 N.Y. 66; Pioneer v. Hanson, 176 Ill. 100; Casement v. Brown, 148 U.S. 622; Smith v. Milwaukee, 91 Wis. 360; Louisville v. Cheatham, 118 Tenn. 160; Harding v. Boston, 163 Mass. 14; Rogers v. Railroad, 31 S.C. 378; Callan v. Bull, 113 Cal. 593. (3) There is no allegation in plaintiff's petition that said company was an unskillful or incompetent corporation only that it was insolvent and, therefore, an improper corporation to enter into a contract with the city, but an incompetent independent contractor will not as to his employee take the case out of the general rule. Schip v. Brewing Co., 64 Minn. 22; Hunt v. Railroad, 51 Pa. St. 474. (4) Blasting, under the circumstances of this case, is not so intrinsically or necessarily dangerous to third persons as to make the case at bar an exception to the general rule. 12 Am. & Eng. Ency. Law (2 Ed.), 512; 16 Am. & Eng. Ency. Law (2 Ed.), 208; 19 Cyc. 9; 26 Cyc. 1556; McCafferty v. Railroad, 61 N.Y. 178; Blumb v. Kansas City, 84 Mo. 112; Edmundson v. Pittsburg, 111 Pa. St. 316; French v. Vix, 143 N.Y. 90; Symons v. Road Directors, 105 Md. 254; Houghton v. Loma, etc. Co., 152 Cal. 500; Kendall v. Johnson, 51 Wash. 477; Tebbitts v. Knox, 62 Me. 437; Cuff v. Newark, 35 N. J. L. 512; Staldter v. Huntington, 153 Ind. 354; James v. McMinimy, 93 Ky. 471; Wetherbee v. Partridge, 175 Mass. 185; Louisville v. Smith, 134 Ky. 47. Petition alleges that the work was not intrinsically dangerous. Duty of making a place safe in blasting operations is delegable. Knorpp v. Wagner, 195 Mo. 637. (5) An employee of an independent contractor cannot recover from the employer of the contractor, even if the work whereby he is injured is intrinsically dangerous. Peoria v. O'Connor, 149 Ill.App. 598; Foster v. Chicago, 197 Ill. 264, 64 N.E. 322; Smith v. Railroad, 151 N.C. 479; Avery v. Railroad, 133 N.C. 130; Reiley v. Chicago, 122 Ia. 525; Engher v. Seattle, 40 Wash. 72; Brantrator v. Keokuk, 108 Ia. 377; Hanna v. Chattanooga, 88 Tenn. 310; Schip v. Brewing Co., 64 Minn. 22. (6) The plaintiff's injury was not due to blasting as such, but to the failure to inspect the charges unexploded, and, therefore, collateral to the work and he cannot recover. Butler v. Hunter, 7 Hurl. & N. 826; French v. Vix, 143 N.Y. 90, Samuelson v. Cleveland Co., 49 Mich. 164; Lafferty v. Gypsum Co., 83 Kan. 349; Water Co. v. Ware, 16 Wall. (U.S.) 566; B. & I Co. v. Ballard, 53 Tex. Civ. App. 110; Dill., Mun. Corp. (3 Ed.), 1030. (7) The city was under no obligation to enforce its own ordinances and no cause of action arose in favor of plaintiff because of such failure. Moran v. Pullman Co., 134 Mo. 651; Loth v. Theater, 197 Mo. 328; Ryan v. Kansas City, 232 Mo. 471.

FERRISS J. Lamm, Woodson and Graves, JJ., concur; Valliant, C. J., Kennish and Brown, JJ., dissent in opinion filed. BOND, C., dissenting.

OPINION

In Banc

FERRISS, J.

Appeal from a judgment of the circuit court of Jackson county sustaining a demurrer to the petition filed by plaintiff charging negligence resulting in personal injuries. The petition was filed on the 15th day of July, 1905, and covers nearly thirty printed pages. The suit was filed against Kansas City and Robert J. Boyd Paving & Construction Company, but subsequently dismissed as to the Construction Company.

It appears from the petition that on the 13th day of May, 1901 Kansas City entered into a contract with the Construction Company for constructing a district sewer in said city by said company. In the course of the ensuing work plaintiff was employed by the Construction Company as a common laborer, and was engaged in drilling holes for blasting rock which was encountered in the work of excavation. The petition charges that the method of preparing the blasts was as follows: The drillers, of whom plaintiff was one, would drill a series of holes about two feet apart, after which such holes would be loaded with giant powder or dynamite by one Kelleher, foreman, and one Moriarity, designated as the powder man, employees of the Construction Company, who would then shoot said holes by means of fuses; that it was usual and customary to count the number of holes in a given series before exploding same, then count the...