Perry v. Ford

17 Mo. App. 212 | Mo. Ct. App. | 1885

Opinion by

Hall, J.

I. In this court the defendant complains that the trial court permitted plaintiff’s witness, Evans, to answer the above question.

There is no claim made by the plaintiff that the defendant had notice of. the former "accident referred to in said question, and of the accident “just after,” mentioned in said question, the defendant could not have had notice.

There was no offer by plaintiff to show such notice. It must be taken therefore that the trial court permitted the introduction of the testimony for the purpose of showing the dangerous and unsafe condition of the water-closet or privy in suit, at the time of the alleged accident to plaintiff.

The fact that another person had fallen into the water-closet or privy, at a time subsequent or prior, to. the accident to plaintiff, was a collateral fact and evidence of that fact, tended to draw .the minds of the jurors from the point in issue, and excite therein their prejudice, and mislead them.

The evidence was clearly inadmissible; it did nqt tend to show the condition of the water-closet or privy at the time the plaintiff was hurt. — Greenleaf on Evidence, 14th ed., vol. 1, sect. 52; Collins v. The Inhabitants of Dorchester, 6 Cushing 396; Lewis v. Smith, 107 Mass. 338; Wentworth v. Smith, 44 N. H. 422.

The admonition of the court to the witness to speak only of his own knowledge did not improve the question. What we have just said has been said with reference to the question confined to the witness’s own knowledge. The question as asked was incompetent for the reasons just given by us, and the objection made to it by the ■defendant should have been sustained. ■ No objection to the competency of the-question was removed by the court’s admonition to the' witness to speak only of his own knowledge and not of what he had heard. The court, by its admonition and by permitting witness to answer the question, clearly and unmistakeably announced its opinion to be that the question was proper, and that any knowledge had by the witness stated by him concerning any other accident at the place named, either just before or just after plaintiff was hurt, would be competent evidence. This in our opinion was error on the part of the court, calculated to do much harm to the defendant. Had the witness possessed the personal knowledge called for by the question and had he communicated that knowledge to the jury, the harm would have been done by the error of the court.

Inasmuch as the court improperly ruled that such personal knowledge on the part of the witness was competent evidence,, and inasmuch as the court instructed the witness that of that knowledge he might speak, we think equal harm was done by that error of' the court to the defendant, when the witness did speak not of his own personal knowledge, but of- what-he had heard, and when the court did not instruct the jury to pay no consideration to such testimony. The testimony as actually given by the witness was calculated to do the defendant harm. -The question in response to which the testimony had been given, had been objected to by defendant, and the 'objection had been improperly overruled by the court. And we think that the error of the court in overruling defendant’s objection to the question is the immediate cause- of the answer of the witness, notwithstanding the admonition of the court to the witness-. For this reason the judgment of the circuit court will have to be reversed and the cause remanded.

II. As this cause-must be remanded for a new trial, it may not be unnecessary 'for ns to give1 our opinion as to the one other question involved herein, which is urged hy defendant.

The only direct evidence in this case as to the contract made by defendant for the repairing of the water-closets in suit is the testimony of the defendant himself, who ■says: “I gave the contract to repair this closet to.Mr. ■Cotter, and when he got ready to repair it, I went with him into the saloon and told Mr. Alms I was now ready to repair this closet”.

The employes of Cotter, a plumber, did the actual work ■of repairing. The defendant was personally present at the scene of repairing, frequently during the work.

It is contested by counsel for defendant that the mere bare statement that defendant gave the contract for the work to Cotter, raises a presumption that the relation between defendant and Cotter was that of contractee and ■contractor, and not of that of master and servant. Such is not our opinion.

Prima facie a person found doing a service for another -'is in the other’s employ. Wood on Master and Servant, p. 584.

Every contract made by the owner of a building for repairs therein does not create the relation of contractee .and contractor between the owner and the person contracted with. If the owner retains the power of ■controlling the work, the relation existing between him and the person contracted with, so far as the responsibility on the part of the owner for. the acts of the person •employed done in and about the repairs is concerned, is that of master and servant. If in this case the defendant could have directed the time and manner of doing the work; if it had been unsafe to do the work at a certain time or in a certain manner, and the defendant could have required Cotter to desist, or could have altered the manner of doing the work; then was Cotter not defendant’s contractor but his servant. Wood on Master and Servant, pp. 626, 627. The mere fact that Cotter followed a certain trade or profession, or carried on a separate and •distinct employment does not change the rule. (Ib.)

It cannot then be presumed that Cotter was- a contractor and not a servant from tbe mere general statement by defendant, tbat be bad given tbe contract to Cotter. But if tbe defendant wants to relieve bimself of liability as. master in tbis case by reason of tbe relation of contractor,, tbe defendant must prove tbe existence of tbat relation. If tbe defendant wishes to escape liability because by tbe terms of tbe contract bis liability bas been imposed upon Cotter, be must prove tbe terms of tbe contract. From tbe evidence in tbis case tbe terms Of tbe contract do not. appear and we cannot say tbat Cotter was not defendant’s servant. Tbe presumption is tbat Cotter was sucb servant.. Tbe evidence does not tend to rebut tbat presumption.

Tbe judgment of tbe circuit court is reversed and tbecause remanded.

All concur.