Taylor v. Walsh

• Decision Date: 22 May 1916
• Docket Number: No. 12068.,12068.
• Citation: 186 S.W. 527,193 Mo. App. 516
• Parties: TAYLOR v. WALSH.
• Court: Missouri Court of Appeals

186 S.W. 527

193 Mo. App. 516

TAYLOR v. WALSH.

No. 12068.

Kansas City Court of Appeals. Missouri.

May 22, 1916.

Appeal from Circuit Court, Jackson County.

Action by Vena Taylor against Michael Walsh. Judgment for plaintiff, and defendant appeals. Judgment affirmed.

Lathrop, Morrow, Fox & Moore, of Kansas City, for appellant. T. B. Buckner, of Kansas City, for respondent.

ELLISON, P. J.

Defendant engaged to construct a public sewer for Kansas City, and under the provisions of the charter of that city the contract was let to him as the best competitive bidder, and he was to receive his pay in tax bills issued against property holders. The land in which the sewer was to be dug and blasted had been condemned by the city for that purpose, and its course led by plaintiff's house. In blasting for the excavation, such vibration resulted that plaintiff's house was damaged. She brought this action against defendant, and recovered judgment in the circuit court. Defendant, conceiving that there was a constitutional question involved, took an appeal to the Supreme Court. That court decided there was no constitutional question in the case, and transferred it to this court for disposition according to law.

The evidence shows that blasting was necessary in doing the work, and there is no evidence that it was negligently done. Defendant concedes plaintiff suffered damage, but insists that the city alone was liable, and denies that our rule announced in Johnson v. Railroad, 182 Mo. App. 349, 170 S. W. 456, can be rightfully applied in this case. In that case, in an opinion by Judge Johnson, we held that where a railroad company, in constructing its roadbed, blasted rock and caused the ensuing vibrations to injure the plaintiff's property, the company was liable in damages, notwithstanding no negligence appeared in the manner of the work, and that work of that character resulting in such damage was a trespass, in which negligence was not a necessary ingredient. It is true that in that case it was the owner of the land upon which the blasting occurred who was held liable for the damages. But we find ourselves without a good reason for distinguishing between the wrongful act of the owner and the same act done for the owner for hire. Liability for a wrong cannot be avoided by the plea that, while it was voluntarily committed, without negligence, it was done at the instigation or request of another.

We are cited to 4 Dillon on Municipal Corporations (5th Ed.) §...