This is an action for damages caused by a personal injury to plaintiff. At the conclusion of the evidence the court directed a verdict for the appellants, Marvin H. Gates and B. T. Whipple, as executors of the last will of Jemuel C. Gates, deceased; but after-
The case was begun against Jemuel C. Gates, Joseph M. Jones, receiver of the Spitcaufsky Construction Company, and John Spitcaufsky. Jemuel Gates died during the pendency of the proceeding and an answer to an amended petition filed by plaintiff was put in by said executors at the January term, 1917. As between- plaintiff and Joseph M. Jones, as said receiver, the case was settled December 29, 1914, for one hundred dollars, plaintiff signing a stipulation to dismiss as to the receiver and to prosecute no further the cause, against him. Jones was receiver of the Spitcaufsky Construction Company under an appointment made in a proceeding in bankruptcy.
Plaintiff was hurt between eight-thirty and nine o’clock on the morning of August 4, 1914, and while she was a passenger in an electric trolley car running southward on Southwest Boulevard, a main thoroughfare between Kansas City, Missouri, and the City of Rosedale, Kansas. As the car was passing a quarry some four hundred and fifty feet from the boulevard, three charges of powder or dynamite were exploded in the quarry, hurling fragments of rock as far as the boulevard, some of it falling about the car, and one striking plaintiff’s wrist. The weather was warm; the car windows w'ere open and plaintiff had rested her arm on the windowsill.' There was evidence that on previous days in the year, blasts had been discharged in the quarry, violent enough to throw rocks three or four inches in diameter, as was the one which struck plaintiff, and perhaps some larger, onto the boulevard and beyond it.
The quarry was in a piece of ground known as Deitz hill, an eminence a hundred feet or more high and from 400 to 450 feet west of the boulevard and the street railway tracks thereon. The land wiiere Deitz
On December 8, 1913, Jemuel Gates served notice on John Spitcaufsky that, because of the latter’s failure to comply with certain specified terms of. the lease, Gates had elected to terminate it on January 15, 1914, unless prior to that date Spitcaufsky had complied with those terms. Another notice was served on Spitcaufsky, January 17, 1914, from which it appears he had written to Gates that he had complied as requested; but Gates reiterated his complaint of Spitcaufsky’s defaults and declared the lease at an end.
On July 21, 1914, two weeks before the accident in question Jemuel Gates served a notice on Joseph M. Jones, as receiver of the Spitcaufsky Construction Company, demanding that Jones desist from trespassing upon the Deitz hill property and taking rock from the quarry; saying that he would be held accountable for past and future trespasses; further saying'Spitcaufsky had viólated the terms on which he had been given the right to take rock from the premises, and because of the violation Gates had cancelled his right; that neither’ Spitcaufsky nor any one else had the right to permit Jones to enter upon or take rock from the premises.
Jemuel Gates filed an action against John Spitcaufsky to the March term, 1915, of the Jackson County Circuit Court to quiet Gates’s title to the premises, setting forth breaches of the terms of the lease as stated in the aforesaid notices, and that the lease had become null and void; that Spitcaufsky had recognized the lease was at an end, but notwithstanding those facts was “claiming the right of possession of the above described premises by virtue of the said lease and has refused to cancel or surrender the said lease in writing and thereby said lease, although terminated, in fact
The amended petition on which the case at bar was tried, alleges Gates leased the premises to Spitcaufsky to use as a stone quarry, and by agreements in the lease authorized and permitted Spitcaufsky to take rock and dirt from the hill; that Gates knew Spitcaufsky in removing the dirt and stone and levelling the hill, would explode large blasts of nitro-glycerine, dynamite and other high explosives; knew the explosions would throw dirt, gravel and rock to great distances and would endanger the lives and property of persons in the vicinity and of passengers on street cars on Southwest Boulevard. It was alleged, next, that Joseph M. Jones was at all times mentioned in the petition, the duly appointed, qualified and acting receiver of the Spitcaufsky Construction Company; that said Jones, as such receiver, was on August 4, 1914, and for a long time prior thereto had been, in charge and control of the stone quarry and Construction Company; that Jemuel Gates, on August 4, 1914, and long prior thereto, knew said Jones, as such receiver, was carelessly and negligently using nitro-glycerine, dynamite, powder and other high explosives, and knew, or should have known, that said receiver, by his negligent methods of blasting, was throwing rock and dirt from the hill and endangering the lives and property of adjacent property owners and the traveling' public.' This allegation also occurs:
After the averment just quoted, the petition alleges that Jemuel C. Gates as the owner of the premises and John Spitcaufsky and Joseph M. Jones as receiver, were, on August 4, 1914, in charge of and operating the premises as a rock quarry; that Gates and Jones, as receiver, and Spitcaufsky were, on said date, operating and conducting a nuisance; that they knew, or should have known, said quarry was a nuisance and knew it was a menace to the traveling public; on August 4, 1914, Gates and Jones, as receiver, and Spitcaufsky knew, or should have known, street cars were constantly operated on Southwest Boulevard past the stone quarry, with passengers in the cars continually in danger of rocks thrown by the blasts; that said deféndants caused and permitted such blasts to be made and as a natural result thereof plaintiff was struck by a rock, etc.
Regarding who was operating the quarry on and prior to August 4th, the . receiver, Joseph M. Jones, testified as follows: He was receiver in bankruptcy ■of the Spitcaufsky Construction Company; he had never been given permission by either Jemuel Gates or his executors to go on the land; the blasting was done by men employed by him and who were on his payroll as receiver ■ of said Construction Company, and he paid them; he was conducting the operations as such receiver; had been ordered to take possession of all the property of the Construction Company, and went to Deitz hill to take possession of its property there; some of the men who had been at work there previously continued to work under him, and some did not; John Spitcaufsky went to the hill occasionally, and he discussed with Spitcaufsky the work in a general way, but the foreman in charge for him as
If there is any evidence to uphold a verdict for plaintiff, the order for a new trial must be affirmed; if there is none, it ought to be set aside and the verdict for appellants reinstated. [Ottomeyer v. Pritchett, 178 Mo. 160, 165; Fitzjohn v. Transit Co., 183 Mo. 74, 78.] The position taken for plaintiff is that the contract between Jemuel Gates and John Spitcaufsky was entered into by the former for the purpose of binding Spitcaufsky to perform work on Deitz hill which would endanger persons in the vicinity and on the boulevard, even if done with due care; and this would lay Gates liable for any damages occurring in the course of the work, whether the contract created the relation of lessor and lessee between him and Spitcaufsky, or proprietor and independent contractor. The relation established was that of lessor and lessee; for the instrument granted to Spitcaufsky an estate for years in the premises, and entitled him to possession during the term against Gates, who had no right to enter except to inspect the work and ascertain whether or not it was being performed according to agreement. [1 Tiffany on Landlord and Tenant, sec. 15, p. 141.] If the intended use of the premises by Spitcaufsky would, of necessity, create a nuisance, Gates, as lessor, must be held to have authorized the nuisance, and to be answerable for consequent damage; for no one may either use, or agree that some one else may use, his property so as to harm others. This fundamental principle has been applied in cases where the facts were quite like those before us. In Harris v. James (45 L. J. Q. B. [N. S.] 545) the action was against a landlord who had let a field to a tenant to operate a quarry on it, the necessary result of blasting* in the quarry being to throw dirt and stone on plaintiff’s land. That being true, the court held
And so it was ruled where a house was let for the storage of powder and a damaging explosion occurred; it appearing the vicinity was so populous that a powder magazine must be a nuisance. [Prussak v. Hutton, 51 N. Y. Supp. 761.]
And where an owner leased his premises for a kiln to dry lumber, a process which, however carefully managed, would endanger by fire the house of the plaintiff, and his house in fact caught fire from the kiln, the owner was made to respond in damages. [Helwig v. Jordan, 53 Ind. 21.]
Other apposite authorities might be cited, and among them Gilliland v. Railroad, 19 Mo. App. 411, where the rule on the subject was adopted as it is stated in a standard treatise:
“In order to charge the landlord the nuisance must necessarily result from the ordinary use of the premises by the tenant, or for the purpose for which they were let'; and where the ill results flow from the improper or negligent use of the premises by the tenant, or, in other words, where the use of the premises may or may not become a nuisance, according as the tenant exercised reasonable care, or used the premises negligently, the tenant alone is chargeable for the damages arising therefrom^” [2 Wood on Landlord & Tenant (2 Ed.), p. 1283.]
• The inference that the quarry on Deitz hill could not be worked without danger to persons and property as far away as Southwest Boulevard, is deducible from the facts in proof; and as there was testimony to show the danger was continuous, or at least occurred at intervals for a considerable period, the work was, in the strict sense of the word, a nuisance; for it disturbed persons who dwelt within range of the blasts in the quarry and also persons on the boulevard in the exercise of the common right to travel there. [Pollock on Torts
Therefore the question for decision here is whether there is evidence to prove John Spitcaufsky, or any one else for whose conduct the lessor Gates was responsible, was operating the quarry and thereby maintaining the nuisance at the time plaintiff was hurt. It is asserted Spitcaufsky was working the quarry on that day, either by and for himself exclusively, or in conjunction with Jones, the receiver, and that because of Spitcaufsky’s separate or joint charge of the work, he caused plaintiff’s hurt, and Gates, who authorized the work, is answerable too. Attentive study of every item of evidence to warrant a finding that Spitcaufsky was wholly or partly in charge of operations when the accident happened, have satisfied us there was no evidence tending to prove he was. The case made by the petition is that the receiver was in chárge and control on that day and long prior thereto, and that Spitcaufsky was aiding, guiding and directing the work as the receiver’s agent, instead of in his individual capacity. Several witnesses testified to seeing John Spitcaufsky about the quarry on and prior to the day of the accident, giving orders and directing the work, but there is nothing in this inconsistent with the averment of the petition that Spitcaufsky was acting as Jones’s agent, or contradictory of the testimony of the receiver that he was operating the quarry and had been in charge since June 13th, nearly two months before the date of the accident. It is said the petition filed by the appellants as executors of the lessor to remove the cloud of the lease from the title, shows Spitcaufsky was in possession of the hill or in charge of the work on
The receiver was not operating there with the consent of Jemuel Gates or the appellants, and so testified. Besides, a notice had been served on him July 8, 1914, by Jemuel Gates that he was trespassing on the leased premises and to desist from taking rock from them. It might be deduced from circumstances in proof, although there is no direct testimony to that effect, that Spitcaufsky Construction Company had been operating the quarry under a contract with John Spitcaufsky, the lessee, as provided in paragraphs one and four of the lease agreement, and that Jones, having been appointed receiver in bankruptcy of said company, took over the work. If Spitcaufsky had contracted with the Construction Company to take rock and dirt from the hill, a contract authorized by the lease agreement, the lessor would have been as responsible for an injury done while the Construction Company was in charge as for one caused by Spitcaufsky himself. But the relation of lessor and lessee did not exist between Gates and the receiver, and no fact appears to indicate that the receiver was working the quarry under authority from Gates as licensee. The lease agreement will not bear the interpretation that Gates was responsible for the torts of a possible receiver in bankruptcy of some person or company whom Spitcaufsky might employ. Whatever right, if any, Jones possessed to conduct the quarry, he got from the court which appointed him. This is by the way, for it is not contended for respondent, that Gates was answerable for the receiver’s torts, the argument being that there is evidence to support an inference that Spitcaufsky was doing the work. We hold there was none to show he was doing it, except as agent or employee of the receiver. Spitcaufsky might be liable as a joint tort
The judgment is reversed and the cause remanded, with directions to set aside the order sustaining the motion for new trial and to reinstate the verdict for appellants and render judgment thereon.