Stanley v. Louisiana Pure Ice & Supply Co.

• Decision Date: 08 December 1925
• Docket Number: No. 18947.,18947.
• Parties: STANLEY v. LOUISIANA PURE ICE & SUPPLY CO. et al.
• Court: Missouri Court of Appeals

279 S.W. 157

STANLEY v. LOUISIANA PURE ICE & SUPPLY CO. et al.

No. 18947.

St. Louis Court of Appeals. Missouri.

December 8, 1925.

Appellant Humphries' Motion for Rehearing Denied December 29, 1925.

Appeal from Circuit Court, Pike County; Edgar B. Woolfolk, Judge.

"Not to be officially published."

Action by Clarence Stanley against the Louisiana Pure Ice & Supply Company and another. Judgment for plaintiff, and defendants appeal. Affirmed.

May & May, of Louisiana, Mo., Hostetter & Haley, of Bowling Green, and Ras Pearson and A. J. Murphy, Jr., both of Louisiana, Mo., for appellants.

C. E. Rendlen, of Hannibal, W. F. Goodman and F. D. Wilkins, both of Louisiana, Mo., and Tom B. McGinnis, of Bowling Green, for respondent.

BECKER, J.

Plaintiff recovered judgment for $500 for personal injuries alleged to have been sustained by him by bricks from a wall which collapsed falling on him while he was digging a trench parallel with, adjacent to, and under, `said brick wall. Each of the defendants in due course appeals.

It appears that the Louisiana Pure Ice & Supply Company, one of the defendants herein (and hereinafter referred to as the Ice Company), was the owner of a certain brick building in Louisiana, Mo., wherein it operated a cold storage and ice manufacturing plant. It determined to build an addition to said brick building immediately adjoining it, and a trench was dug immediately adjoining the west wall of their said building for the foundation of the new addition. This trench was to be dug three feet deeper or lower than said west wall, and from underneath said wall to the bottom of the trench to an extent of six inches in width.

One Charles E. Goodman was employed by the defendant ice company to do the excavating or trench work on a basis of 65 cents per cubic yard. The plaintiff was employed directly by said Goodman as one of the laborers to do the actual digging. After Goodman had been working some time upon the excavation work, one Thomas J. Humphries, the other defendant in the case, became general contractor for the building of the new addition. Under the general contract entered into by said Humphries and the ice company, one Ralph Stuart was to be the supervising architect or inspector of the erection of the addition.

There is no dispute but that the west wall of the old building nearest to which the excavation or trench was being dug was not shouldered or shored up in any manner to prevent it from falling, nor was the excavation dug in sections and such sections filled in with stone or cement so as to give support to the wall while the next section of the trench was being dug. There seems to be no contention but that it was negligence to dig beneath the foundation for its entire length in the manner in which the digging of the trench was admittedly done, and it is conceded that the wall did fall and injure plaintiff while he was in the trench excavating underneath the foundation wall of the ice company's building.

It will be noted that Goodman, the direct employer of plaintiff, who was doing the general excavating work for the new addition, is not made one of the defendants herein, but that the action is directed solely against the owner of the building and the general contractor.

But one assignment of error is suggested here; namely, that the court erred in refusing each of the instructions in the nature of a demurrer to the evidence offered by the defendants.

In support of this contention it is urged that under the record the court should have declared as a matter of law that Goodman was an independent contractor for the doing of all of the excavating work, and that therefore neither the defendant ice company owner of the building and contractee for the excavation work, nor the defendant Humphries, general contractor (excepting for excavation work), are liable for an injury to plaintiff employé, suffered through the negligence of his employer, the independent contractor.

In considering this question, we have gone Over the record with painstaking care, and have come to the conclusion that the trial court could not have ruled as a matter of law that Goodman Was an independent contractor, but that the testimony adduced, bearing on this question, made it a question for the jury. The court therefore properly ruled said demurrers.

We set out so much of the testimony as we think sufficient to Support our ruling.

Charles E. Goodman, a witness for plaintiff, testified:

That one Eugene B. Rogers was manager of the defendant ice company; that Rogers came to him, and stated that the ice company intended to build an addition to their building, which new building would need some excavating; that he wanted the witness to do the excavating, and wanted' to know how much it was worth; that the witness did some figuring on the proposition, and concluded that "the excavation would be worth 65 cents per cubic yard"; that Rogers asked him how many yards of excavating there would be; that he, the witness, replied he did not know "how deep, how wide, or how long" the trenches would be; that Rogers replied that their architect had gone over the ground, and had figured the excavation at approximately 200 yards. The witness then told Rogers he would do the excavating for 65 cents per cubic yard, and Rogers stated "he would take care of what was under the building."

"Q. Tell us whether Rogers directed where to begin and what to do? A. Yes, he gave me depth of what he thought trench should be, and we worked a while, and finally Stuart came down; claimed he was superintendent; and he gave markings of the house. * * *

"Q. What was this trench for? A. Main excavation for the basement.

"Q. Did you lay out the work, or did Mr. Stuart or Rogers or Humphries? A. Mr. Rogers gave me the general lay, and Stuart came on the job, and he moved us about 15 or 18 inches further, and Humphries came and he put us about 21 inches from the original starting point.

"Q. Were the main excavations for the trenches laid off? A. Yes; the trenches were laid off.

"Q. Who laid them off? A. Humphries.

"Q. What did he do? A. Drove a stake in one end and on the other side measured across and go to the width, and tell you how deep to go down.

"Q. What did you do? A. Went to work and dug it out.

"Q. Was Humphries present? A. All the time after he came on the job."

According to this witness, they completed digging the trench alongside the west wall foundation, excepting for the digging a the earth from underneath the foundation, on March 3d. The witness stated:

That before he began digging under the wall he said to Humphries, the general contractor, that he "didn't think it looked good" to him; that Humphries said it was all right; that the building would hold; that Humphries thereupon got a spud, "but it was dull, and he told me to take it to the blacksmith shop, and have it sharpened, and I did, and when I got back we began spudding under there, and Mr. Humphries did the first spudding, and then I took the spud and spudded after he showed me how he wanted it.

"Q. What did you say to him in this particular? A. I had mentioned to him didn't he think it would be a good idea to take part of the dirt out and fill with concrete, and he said that would hold all right. * * *

"Q. Were the men doing the work laid out by Humphries at the time the wall fell? A. Yes. * * *

"Q. Do you recall how many days it was before the wall fell that Humphries came there? A. He was there four or five days; possibly a week.

"Q. Did you have a talk with Mr. Rogers or any other officer of the company about Humphries going on the job? A. Yes; Rogers said Humphries had the contract for putting up the building and that he would take charge of the excavation. * * *

"Q. And you dug where he told you to dig? A. Yes."

We quote the following from the cross-examination of this witness:

"Q. You made the contract with Rogers about the last of February, did you not, to do this excavating? A. About the last of January.

"Q. And your contract was to do all the excavating for the new building, including the foundation and basement, at 65 cents per cubic yard? A. Not all of it.

"Q. I am not talking about under the old building. A. The old building was to be torn down; the building that fell was to be torn down. * * *

"Q. You refer to the fact that you were to do no excavating under the old building? A. Yes; that was under the building that was to be torn away.

"Q. The excavation you did was embraced in your contract? A. Not the entire.

"Q. What part was not? A. Digging under the wall was matter of accommodation.

"Q. You did that as a matter of accommodation? A. They wanted to preserve the building to store the ice in there until they got another.

"Q. Mr. Rogers didn't say anything to you about it, did he? A. Yes; several tithes he said he was going to keep that building as long as he could.

"Q. This digging you did was according to the plans for the erection of the new building? A. I do not know. I did it according to directions We did not have any plans when I made the contract.

"Q. You made your contract with Rogers, and you were to do all of the work, dig out all the dirt, at 65 cents per cubic yard? A. Except under the building he was going to tear down.

"Q. You never did dig any dirt under the old wall? A. Yes; six inches.

"Q. Mr. Rogers did not tell you to do that? A. Mr. Humphries did.

"Q. You say that Mr. Humphries—who was Humphries? Was he general contractor to erect the entire building, including excavation? A. Yes, I think so. Rogers told me he was.

"Q. He told you, and so did Humphries? A. I do not know as he told me anything about it.

"Q. And he told you where to put the ditches? A. Yes.

"Q. He consulted plans and specifications? A. I think so.

"Q. And he told you that the plans called for the ditches in a certain place? A. Yes.

"Q. You attempted to dig them according to plans and specifications? A. According to his instructions. * *...