Wilkey v. Rouse Const. Co.

• Decision Date: 20 May 1930
• Citation: 28 S.W.2d 674,224 Mo.App. 495
• Parties: A. W. WILKEY, RESPONDENT, v. ROUSE CONSTRUCTION COMPANY, APPELLANT. [*]
• Court: Missouri Court of Appeals

28 S.W.2d 674

224 Mo.App. 495

A. W. WILKEY, RESPONDENT, v. ROUSE CONSTRUCTION COMPANY, APPELLANT. ^[*]

Court of Appeals of Missouri, Springfield

May 20, 1930

Appeal from the Circuit Court of Stoddard County.--Hon. W. S.C. Walker, Judge.

AFFIRMED.

Judgment affirmed.

Jeffries Simpson & Plummer and Wammack, Welborn & Cooper for appellant.

(1) Humphreys & Stebbins, a co-partnership, constructed Wahite Bridge as independent contractors and not as servants of Rouse Construction Company, a corporation. 2 Cooley on Torts (3 Ed.), 1098; Peters v. St. L. & S. F. R. Co., 150 Mo.App. 721; Linquist v. Hodges, 248 Ill. 491; McAllister's case, 229 Mass. 193; Schroer v Brooks, 204 Mo.App. 567; Crenshaw v. Ullman, 113 Mo. 633, 20 A.L.R. 773; Long v. Moon, 107 Mo 334; Scharff v. So. Ill. Const. Co., 115 Mo.App. 157; Salmon v. K. C., 241 Mo. 14; Pack v. New York, 8 N.Y. 222; Aarnes v. Great Northern R. R., 129 Minn. 467. (2) Rouse Construction Company, a corporation, was not liable for any acts or omissions of Humphreys & Stebbins, a co-partnership, independent contractors, unless the work sublet to them was unlawful, or inherently or intrinsically dangerous. Hilsdorf v. City of St. Louis, 45 Mo. 94; O'Hara v. Gas Light Co., 244 Mo. 395; Fink v. Mo. Furnace Co., 82 Mo. 276; Barry v. City of St. Louis, 17 Mo. 121; Clark's Admx. v. St. J. R. R. Co., 36 Mo. 203 (126); Crowder v. Emery, 206 Ill.App. 562; Green v. Soule, 145 Cal. 96; Salliotte v. King Bridge Co., 122 F. 378. (3) The work sublet to Humphreys & Stebbins, a co-partnership, by Rouse Construction Company, a corporation, was not unlawfully or inherently or intrinsically dangerous. 39 Corpus Juris 1332, 1334; Mo. Valley Bridge & Iron Co. v. Ballard, 53 Tex. Civ. App. 110; O'Hara v. Gas Light Co., 244 Mo. 395, 409; Scammon v. Chicago, 25 Ill. 424; Davis v. Whiting & Son Co., 201 Mass. 263.

George Munger and Gene Munger for respondent.

(1) (a) That the traveling public was entitled to notice of the danger that lurked at the end of the Wahite bridge is self evident, in the light of the evidence, and was so found by the jury. Matthews v. Railway Co., 26 Mo.App. 80; Denny v. Bridge & Iron Co., 150 Mo.App. 76-7. (b) That the burden of giving such notice rested upon the shoulders of the one in control of the road over which the unwarned traveler passed is clear. Melican v. Whitlow Co., 278 S.W. 365. (c) That the one in control of this road was appellant is not disputed, by evidence or otherwise. (d) That the appellant ought to have given notice of this danger is the unavoidable conclusion. Clark v. Railroad, 234 Mo. 427-8. (e) That appellant did not give such warning notice is proven by the verdict of the jury. (2) (a) It mattered not to respondent who gave the notice of the danger that threatened so it was given. (b) It was this fact that entitled appellant to attempt to show that though it took no steps to notify the public Humphreys & Stebbins had done so to its use and benefit. (c) It failed to so convince the jury. Hence the verdict in favor of the respondent. (3) The doctrine of independent contractor does not apply to the facts in this case, because: (a) The alleged independent contractor never, at any time, had control over the place where the train of events leading to the damage out of which this suit comes, ended, transpired or began. (b) The injury did not occur because of anything that was done on any part of the project bid in by appellant and which it claims to have sublet to Humphreys & Stebbins.

BAILEY, J. Cox, P. J., and Smith, J., concur.

OPINION

BAILEY, J.

This is an action to recover damages for the destruction of plaintiff's automobile alleged to have been the result of defendant's failure to place barriers and warning signals at a place on the State highway where a bridge was being constructed and a detour commenced. The petition charged that defendant corporation was engaged as contractor by the State Highway Commission to construct concrete roads and bridges on State Highway No. 16, in Stoddard county, and on the---day of October, 1926, was engaged in rebuilding a bridge on said highway at Wahite; that the highway was in use at that point but in order to so use it the State Highway Commission caused a detour bridge to be constructed just south of said Wahite Bridge to be used until defendant should complete the highway bridge; that in order to get upon said detour bridge "it was necessary to leave said highway at the east end of said bridge at an acute angle making said detour a dangerous one to go upon." After reciting defendant's duties as to warnings and barriers the petition charges that, "defendants negligently and carelessly failed and refused to place and maintain during the nighttime sufficient signals, guards, barriers or notices to apprise people approaching said bridge along said highway from the east of its condition and of the necessity to use said detour and temporary bridge and negligently and carelessly failed to take any steps to notify the traveling public approaching said bridge of their danger in so doing and of the necessity of detouring as aforesaid." It is then alleged that at about 10:00 P. M. on the day referred to plaintiff's car, while being carefully driven and without any knowledge on the part of the operator of said car as to the condition of the bridge or the necessity to detour, by reason of the defendant's negligence as aforesaid, was thrown from the detour bridge and wholly demolished. Defendant's answer sets up that it was not at any time engaged in the building of the bridge mentioned in the petition but that all of said bridge was constructed by the firm of Humphreys & Stebbins as independent contractors over whom defendant had no authority or control. A further defense of contributory negligence was pleaded. On trial to a jury plaintiff obtained a verdict and judgment in the sum of $ 1000, from which judgment, defendant has appealed.

At the trial the court gave plaintiff's instruction B, which, in effect, took away the defense that the work on the bridge was being performed by an independent contractor for whose acts defendant was not responsible. The court also refused defendant's instruction A, which was a peremptory instruction to find for defendant on the theory that Humphreys & Stebbins were constructing the bridge as independent contractors for whose acts defendant was not responsible. The court's action in giving plaintiff's instruction B, and in refusing defendant's instruction A, is assigned as error. In considering this assignment, it becomes necessary to briefly set forth the facts.

It is conceded that defendant was an original contractor for the building of something over four miles of concrete road from Gray Ridge to Morehouse, which contract included the Wahite Bridge in question. This contract was in writing. Among other things it contained the following provision, to-wit: "3-7. Subletting or Assignment of Contract--The contract or any portion thereof shall not be assigned or sublet except with the written consent of the chief engineer. No subcontract shall under any circumstances relieve the contractor of his liabilities and obligations under his contract and all transactions with the commission or the engineer must be through the general contractor. Subcontractors will be recognized only in the capacity of workmen and shall be subject to the same requirements as to character and competence."

Sections 4-19, provided that until acceptance of the work by the engineer it should be under the charge and care of the contractor, defendant herein, and the contractor shall take necessary precaution against injury or damage. Sections 4-20 provided that when in the opinion of the engineer a portion of the work was in an acceptable condition for travel it should be open to traffic as might be directed. Sections 24-1 of the contract was as follows: "Barricades shall consist of a wood fence built across the right-of-way, with double or single gates across the traveled way. Detour boards shall consist of wood sign boards on wood posts. Barricades and detour boards shall be constructed at places designated by the engineer and in accordance with these specifications.

"'Cardboard or metal signs bearing the proper inscriptions will be placed on the boards by the engineer, without cost to the contractor.'"

There was undisputed evidence that defendant sub-let the building of the Wahite Bridge to a co-partnership composed of Humphreys & Stebbins. This evidence consisted of oral testimony and letters. The subcontract was apparently never formally approved by the written consent of the chief engineer, as the contract required, but that was a provision of the contract which might be waived and was in fact waived under the evidence in this case. We have so held under similar circumstances. [State v. Southern Surety Co., 294 S.W. 123 130.] There was also undisputed evidence that Humphreys & Stebbins had complete charge of the work of erecting the Wahite Bridge, to be governed, of course, by the plans and specifications laid down in the original contract and subject to such supplemental orders as might be placed with the original contractors by the State Highway Commission. There was also undisputed evidence that the men employed in the building of the bridge in question were hired and paid by Humphreys & Stebbins. Their superintendent testified in part as follows: "I had full charge of overseeing the work on the bridge. I employed the men working on the bridge. They were paid by Humphreys & Stebbins. I was never employed by the Rouse Construction Company. None of the men who built that bridge were employed by the Rouse Construction Company. I learned of the accident to Mr. Wilkey's car on October 22, 1926. The day before...