241 Mo. 14 | Mo. | 1912
Lead Opinion
— Appeal from a judgment of the circuit court of Jackson county sustaining a demurrer to the petition filed by plaintiff charging negligence resulting in personal injuries. The petition was filed on the 15th day of July, 1905, and covers nearly thirty printed pages. The suit was filed against Kansas City and Robert J. Boyd Paving & Construction Company, but subsequently dismissed as to the Construction Company.
It appears from the petition that on the 13th day of May, 1901, Kansas City entered into a contract with the Construction Company for constructing a district sewer in said city by said company. In the course of the ensuing work plaintiff was employed by the Construction Company as a common laborer, and was engaged in drilling holes for blasting rock which was encountered in the work of excavation. The petition charges that the method of preparing the blasts was as follows: The drillers, of whom plaintiff was one, would drill a series of holes about two feet apart, after which such holes would be loaded with giant powder o.r-dynamite by one Kelleher, foreman, and one Moriarity, designated as the powder man, employees of the Construction Company, who would then shoot said holes by means of fuses; that it was usual and customary to count the number of holes in a given series before exploding same, then count the explosions to see whether they corresponded with the number of holes, and afterwards to inspect and examine the holes so exploded for missed shots; that the plaintiff and his gang had nothing to do with the loading or exploding of the holes, nor with the subsequent inspection, but that after the holes had been exploded and inspected plain
The plaintiff makes the proper averments to negative any contributory negligence on Ms part.
There seems to have been no controversy as to the liability of the Construction Company for the negligence of its superintendent. The real controversy in the case is whether Kansas City is liable. The petition proceeds upon the theory that because of the power of control reserved in the contract to the city’s engineer, the Construction Company was not an independent contractor, and, hence, the city is liable. In stating below the substance of the petition, we adopt the italics as they appear in the abstract filed by plaintiff. We do not apprehend that these italics appear in the original contract, but use them because they indicate the parts of the contract on which the plaintiff particularly relies.
Plaintiff alleges that the city ordered the construction of the sewer; sets out certain ordinances of the city which provide for the appointment of a city engineer whose duty it should be “to supervise the construction of public and district sewers;” also to prepare plans, specifications and estimates of the cost of all public and district sewers ordered by the council; to report to the board of public works all violations of 'any contract; to sign all contracts on behalf of the
“Permit for Blasting: — No person shall do or cause to be done any blasting within the city limits without first obtaining from the city engineer a permit therefor, which shall be issued only on condition that the city engineer is satisfied that the applicant is in every particular 'a safe, careful and suitable person to use, and an expert in the use of, all explosives used in blasting, but no permit shall, under any circumistamces, be issued to any one until the applicant therefor has entered into a bond to Kansas City in the sum of not less than one hundred dollars or more than ten thousand dollars, as the city engineer may require, with at least two securities, to be approved by the city comptroller, conditioned that such person will carefully and prudently use such explosive, and will pay any and all damages caused any person by the use-thereof. And any person can sue on such bond in his own name for any damage caused him by the use of. such explosive.”
The petition sets out in haec verba the contract between the city and the Construction Company. This contract is extremely lengthy, is in the usual form of municipal contracts for public works, giving specifications as to the character of the work to be done, materials to be used, all under the supervision of the city engineer. The contract provides that the party of the first part (the Construction Company), having made the lowest bid, agrees to complete the work in a substantial and workmanlike manner, “in conformity with the plans of such work on file in the office of the city engineer of Kansas City, in strict obedience to the directions which may from time to time be given by said city engineer or his authorized agents, in accordance with the following specifications.” The specifica
This contract was entered into by the Construction Company, as party of the first part, the National Surety Company, party of the second part, and Kansas City, party of the third part; the National Surety Company being surety for the contracting company for the faithful performance of the contract. The said party of the second part agreed “that the said party of the first part will well and faithfully perform each and all of the terms and stipulations in the foregoing contract; ’ ’ and further agreed that the work was to be begun within ten days, “unless the city engineer shall specially direct otherwise.” The contract is signed by the city engineer on behalf of the city, and was duly approved and confirmed by the city council.
The various specifications of negligence charged against the city are scattered through this lengthy petition in a somewhat confused and inconsequent manner. We have, however, carefully analyzed the same, and find the specifications of negligence may be stated as follows:
1. That the defendants knew, or might have known by the exercise of due care, that there was an unexploded shot in one of the drill holes, but that they negligently and carelessly failed to remove said danger or to warn plaintiff thereof, and negligently ordered plaintiff and his gang to go to said place and drill a new series of holes in close proximity to said unexploded charge.
2. That the injury to plaintiff resulted from the immediate carelessness and negligence of the foreman, Kelleher, and the powder man, Moriarity, who were working under the direction and control of the defendants; that they were not safe, careful or suitable persons for the performance of their duties; were not experienced, and were not competent; that the defendants knew of such incompetency, and were negligent in entrusting them with the work, and that defendants knew that Moriarity was utterly incompetent.
3. That the defendants negligently and carelessly failed and refused to obey the terms of section 883 of the ordinances, set out above, and that tney carelessly and negligently violated said ordinance, in that they failed to compel a compliance with said ordinance, which required them to employ expert licensed blasters; that the blaster employed by them was incoru
4. That the city reserved and had the power to direct and control the manner of performing'said work of blasting, and to direct and control all the workmen, and was careless and negligent in failing to exercise such power and control, and negligently caused the same to be done without reasonable care and prudence, and that the defendants were negligent in failing to superintend and. control the. manner of performing-said work of blasting in all its details; that the engineer had the power and authority to control and direct all the workmen as to the manner of doing the work, and especially the manner of doing said work of blasting, but negligently failed to exercise such control.
5. That said series of holes to which said unexploded shot belonged was excessively, unusually and unreasonably large in number, and that the foreman and powder man were negligent in attempting to explode same at one time.
6. That the defendants were careless in failing to provide and use on said job reasonably safe explosives or safe and suitable fuses.
7. That defendants were, negligent in failing to provide said foreman and powder man with proper, usual and reasonable tools and instruments with which to search and examine for unexploded powder.
8. That defendants negligently failed to provide said foreman and powder man with proper, usual and reasonable tools and instruments for cleaning out old drill holes and removing powder from unexploded
9. That the Construction Company was at the time of entering into said contract a corporation organized under the laws of Missouri; that it was an insolvent and irresponsible corporation, and was not a fit, proper or suitable corporation for the city to enter into said contract with, and that said, defendant city was negligent and careless in entering into said contract with said Construction Company, in that said company was an insolvent, irresponsible company, and not a fit, proper or suitable corporation for said work, and that the defendant city, at the time of entering into said contract, and throughout the performance of said work, had knowledge of the foregoing facts, or by the exercise of ordinary care would have had knowledge thereof.
10. That said engineer had authority and power to. cause the discharge of all incompetent, disorderly and unfaithful servants engaged on said work, and was negligent in failing to cause the discharge of said foreman and powder man, and, further, in failing to cause the selection and employment of a qualified blaster-one qualified under "the terms of section 883 of said ordinance.
11. That the defendants and each of them failed to use reasonable care to provide plaintiff with a reasonably safe place in which to work, and negligently failed to use reasonable care to keep said place of’ work reasonably safe.
It is further averred in said petition that explosives could be used for blasting in said sewer only by an expert, and that such work required special ability, skill and training; that said unexploded charge was not a risk necessarily incident to said employment; that it was a danger which “could have been obviated by the adoption of reasonable measures of precaution by the defendant, and that the defendants negli
It is apparent from reading the contract incorporated in the petition, and above abstracted, that the actual work of constructing- the sewer was performed by the employees of the contracting company which, under the contract, furnished the labor and material; so that wherever in the petition the plaintiff speaks of the defendants, including the city, it is not intended to be asserted that the city was in actual, physical charge of the details of the work, but that by operation of law the employees of the contracting company were the servants of the city; so that, in so far as the pleader charges negligence upon the city, it is a legal conclusion.
The above specifications of negligence charged against the city, with the exception of numbers 3 and 9, may be grouped together for the purposes of this discussion. The liability of the city predicated upon
I. The petition proceeds upon the theory that under the contract between the city and the Construction Company, the city reserved the direction and control of the immediate acts which, because of their negligent performance, resulted in injury to plaintiff, and the city is therefore responsible for such acts.
As the material parts of the contract are set out in haec verba in the petition, the court will look to the contract itself and construe it according to its terms, regardless of the construction placed upon it by the pleader. Following settled rules of construction, we consider the circumstances of its creation, the object-sought to be accomplished, and the terms of the entire instrument. So considered, does a fair construction of this contract sustain the contention of plaintiff? Counsel for plaintiff asserts in his brief as his basic propositions the following: “The contractor was not independent as to blasting. As to blasting, the contractor was subservient and was completely under the power of control of the defendant. As to blasting, the .relationship of principal and agent subsisted be
Leaving the question of the alleged incompetency of the contractor for later discussion, we will consider the contract. It is in the usual form of contracts for municipal public works, specifying at length and in detail the work to he done and materials to be used, all material and labor to be furnished and paid for by the contractor, who is to be paid for a completed sewer a lump sum to be ascertained by the dimensions thereof. In order to secure a satisfactory job, the owner (Kansas City) reserves to its engineer large powers of supervision and control as to quality of material and the method o.r mode of construction. Obviously, however, these powers are reserved to protect the interests of the city, and not in the interest of the contractor or his servants, nor for their protection. Neither the contractor nor his servants would have ground for complaint should the city fail to exercise such power of supervision. The engineer assumed no duty to plaintiff by the terms of the contract. The plaintiff did not look to the city inspector to protect him from unexploded charges. His reliance was on the foreman employed by the contractor. The contract must be construed as a whole, not upon detached phrases which in themselves in a proper relation might be apt enough to sustain plaintiff’s claim. Taken as a whole, it is plain enough that the powers given to the city engineer are solely for the purpose of securing compliance with the specifications provided in the contract. By no fair construction can the provision authorizing him to direct the mode of doing the work
In the case at bar the contract does not authorize the city to give direct orders to the workmen. The city does not hire them nor pay them. The liability of the master for the negligence of his servant arises from the fact that he selects the servant with a view to his skill, and is therefore responsible for such selection. There is no. such basis here for imputing responsibility to the city.
In the ease of Carman v. Railroad, 4 Ohio St. 399 (cited by plaintiff), discussing whether the owner or contractor is liable, the court suggests this distinction: “In the one case, the principal (owner) selects the servant or agent with a view to his skill and care, and not only retains the control over all his operations, but also has the power to dismiss him at any time for misconduct. In the other, the contractor assumes this position, leaving the employer no control over the work or the persons by whom it is executed, but simply the right to require the thing produced, or the result attained, to be such as the contract has provided for. ’ ’
A contract similar in general character to the" one before us, but in some respects giving greater power to the engineer, was construed in Norwalk Gas Co. v. Borough of Norwalk, 63 Conn. 495. The petition sought to hold the borough liable for injuries resulting from negligent blasting in the construction of a
There is no claim'in the petition in the case before us that the city, through its inspectors, in fact directed the acts which it is alleged caused the injury to plaintiff.
In Poster v. City of Chicago, 197 Ill. 264, it was insisted that the city was liable for an injury received
“It is true that the contractor agreed to perforin all the work ‘under the immediate direction and superintendence of the commissioner of public works, and to his entire satisfaction, approval and acceptance,’ but the work he agrees so to perform is that prescribed in the contract, and it is evident, we think, that this direction and superintendence relate to results — to the character of the workmanship — and not to methods, unless by the use of improper methods the character •of the workmanship was rendered unsatisfactory. . . . The contract does not include the direction, management and control by the city of every detail of the work. The contractor was not required to take his orders, day by day, from the city. He was to be guided by the contract and the specifications constituting a part thereof. He was not a mere servant and employee. He was an independent contractor, the city retaining such supervisory power as it might, from time to time, find it necessary to exercise to insure compliance with the contract and to obtain the result called for thereby. The contractor employed and paid his own laborers. The deceased was his employee. The difference between an independent contractor and a mere servant is not determined solely by tbe retention of a certain kind or degree of supervision by the employer. It is to be determined by the contract as a whole — -by its spirit and essence — and not by the phraseology of a single sentence or paragraph. Being a contractor, and not a mere servant of the city,*37 the latter cannot be held liable for his negligence in the performance of his work. . . .
“This is not a case where a party, when passing along or using a public street, has been injured because of the negligence of the city in permitting or causing a sewer to be constructed or other work to be carried on in such a street, creating a danger to passersby for which proper safeguards have been negligently omitted. In City of Springfield v. Le Claire, 49 Ill. 476, cited by the appellant’s counsel, the question was whether there was a duty resting upon the city growing out of the franchise conferred upon it to keep its public streets in a safe condition for the passage of travelers and others having occasion to use them, and the question was properly answered in the affirmative. But the deceased in the case before us was not a passenger or a traveler over the street when injured, and there is no analogy between the case so cited, or others of like character referred to by appellant’s attorneys, and the circumstances of the case at bar.”
We rule against the plaintiff on the proposition that the contract reserved to the city the control of the acts complained of.
II. It is urged that even if the city is not liable by contract, it is still liable because of its failure to perform a duty to plaintiff imposed upon it by law; that blasting is so intrinsically dangerous that it be-, comes the duty of the city, when it authoiizes its use in public work, to guard third persons, including the servants of an independent contractor engaged in the ivork, from the incidental danger. The industry of counsel for plaintiff in. error has brought to our attention numerous cases, as well as conclusions of test-writers, recognizing that the law imposes upon municipalities and owners of property certain obligations toward others which cannot be escaped by interposing an independent contractor as the active doer of the
It is said that blasting is intrinsically dangerous, and that therefore the city is liable for injury resulting therefrom. The doctrine as laid down in this regard by the authorities is that the city cannot escape whatever duty arises from the use of this dangerous agency by delegating the act to an independent-contractor. As to the extent of the duty imposed upon the city the authorities are not uniform. It has been held that this duty is to use due care only to prevent injury. [Booth v. Railroad, 140 N. Y..267.] It has also been held that in some instances, where blasting is- done in the street, the city is liable in any event, and cannot defeat a recovery by showing due care. We are not -called upon to lay down an exact rule on
The doctrine of the. cases referred to has no reference to a servant of the contractor engaged in blasting ; certainly not when, as here, the injury to the servant results from the sheer negligence of the contractor or his foreman in failing to protect the laborer in work which in itself is not inherently dangerous. The drilling of a hole for a charge of dynamite is certainly not an inherently dangerous task. The negligence of the foreman, which it is charged was the immediate cause of the injury, was not the natural and obvious result of blasting; so that even if the doctrine of cases involving the rights of outsiders be extended to the servant of the contractor, the servant in this case
In Missouri Valley B. Co. v. Ballard, 53 Tex. Civ. App. 110 (a case in point upon the facts), the servant of the independent contractor sued the owner. The court, after stating the general • doctrine of liability of the owner to the public, says: “The exception within which the verdict of the jury' has brought this case finds its’ best illustration in those cases where public streets have been made dangerous by excavations or otherwise, and where in the nature of things the safety of the traveling public has been endangered, unless needed precautions have been taken to prevent it. In such a case, as has been often said, the injuries are the direct result of the very thing which
If the owner directs the contractor to perform an act which is dangerous to others, even if carefully performed, he is liable to others for the consequences, In such case the injury results, not from the mode in which the act is done, but from the doing of the act by the most careful mode. The danger is incident to the act itself; hence, the owner is responsible for the consequences of the act. On-this principle rest the numerous decisions in cases where blasting throws rocks which cause damage. As was said by the Supreme Court of Arkansas in Railway v. Yonley, 53 Ark. l. c. 598: “If one» employs another to perform a work which from its nature is necessarily dangerous to the property of a third person, the employer cannot escape liability for the injury thereby done. In such cases the injury flows from the doing of the act as its natural consequence, and not from the manner in which the act is done.” But aside from the differential facts above referred to, the doctrine of liability of the city to outsiders, supported by plaintiff’s cases, is not extended by either reason or authority to include the servant of the contractor. If the foreman himself had been injured by his own negligence averred in the petition, it would hardly be claimed that the city would be liable; yet the doctrine for which plaintiff contends would protect the foreman, orpeven the contractor himself, from the consequences of his own negligence. It would be a strange anomaly in jurisprudence were we to hold that an employer is
Tbe true rule of liability is thus stated by Dillon in bis work on Municipal Corporations, sec. 1723, vol. 4. “Where the work contracted- for necessarily constitutes an obstruction or defect in tbe street, of such a nature as to render it unsafe or dangerous for tbe purposes of public travel,' unless properly guarded or protected, tbe employer (equally with tbe contractor), where tbe injury results directly from the acts 'which the contractor engaged to perform, is liable therefor to tbe injured party. But tbe employer is. not liable where tbe obstruction or defect in tbe street causing tbe injury is wholly collateral to tbe contract work, and entirely tbe result of tbe negligence or wrongful acts of tbe contractor, subcontractor, or his servants. In such a case the immediate author of tbe injury is alone liable.”
In Peoria B. & C. Trac. Co. v. O’Connor, 149 Ill. App. 598, a laborer employed by the contractor for a street railway company sued the railway company for injuries received on account of a defective derrick rope used in hoisting an iron pole in the street. The court, after stating the rule that protects persons using the streets, said: “If appellee had been injured while using such public street or ground as a passer-by thereon, appellant could not have relieved itself of liability for its negligence in creating such condition merely because the construction company had failed to do its duty. Appellee when injured was not in the
From the foregoing,reasoning and authorities, it is clear that, even conceding that blasting is intrinsically dangerous, there would he no liability in this case, as a matter of law, on the part of the city to plaintiff for injuries caused by the negligence of the contractor’s foreman.
III. It is claimed that the petition avers that the contractor was incompetent, and known to the city to he so. The charge in the petition falls short of this. Here it'is: “That said Robert J. Boyd Paving and. Construction Company was at the time of en tering into said contract and still is a corporation, organized and existing under the laws of Missouri. That it was an insolvent and irresponsible corporation, and was not a fit, proper or suitable corporation for the city to enter into said contract with, and that defendant city was negligent and careless in entering into said contract with said Robert J. Boyd Paving and Construction Company, in that said company was an insolvent, irresponsible company, and not a fit, proper or suitable corporation for said work, and that the defendant city at the time of entering into said contract, and throughout the performance of said work, had knowledge of the foregoing facts, or by the exercise of ordinary care would have had knowledge thereof.” * ‘
The unfitness alleged must be referred to the alleged insolvency. Furthermore, for reasons given above, a charge of incompetency would not help plaintiff. The city owes no duty to the servant of the contractor to provide him a competent and skilful employer. In Schip v. Pabst Brewing Co., supra, the court (L. c. 25) said: “Neither has our attention been called to any case where the owner was held liable on
The following cases are cited by plaintiff on this point: Brannock v. Elmore, 114 Mo. 55; Dillon v. Hunt, 82 Mo. 155; Mullich v. Brocker, 119 Mo. App. 332. But these cases refer to the obligation which the owner owes to outsiders. No ease has been cited, or found by us after extensive research, which extends this obligation to a servant of the independent contractor.
IY. The pleader attempts to predicate liability against, the city because of the alleged violation of section 883 of the ordinance, requiring a license to qualify one to do blasting. On this point it is sufficient to say that the law is settled in this State that a city is not liable for failure to enforce its ordinances. [Ryan v. Kansas City, 232 Mo. 471; Loth v. Theatre Co., 197 Mo. 328.]
Tested by the foregoing reasons and authorities, the petition fails to state a case against the defendant city.
The demurrer having properly been sustained, the judgment of the circuit court is affirmed.
Dissenting Opinion
— Plaintiff sues Kansas City (a municipal corporation) and the Robert J. Boyd Paving & Construction Company (a business corporation) to recover for personal damages sustained by the belated explosion of a stick of dynamite, employed in blasting rock to make a course for a sewer in process of construction under a contract between the defendants.
The gist of the allegations of plaintiff’s petition is, to-wit: That the defendant city exists and is governed under a special charter, whereby it is empowered to enact ordinances for causing and regulating sewer construction, in pursuance of which it has employed a large number of sewer inspectors;.that it is required by its ordinance to employ, and has employed, a city engineer, skilled in the science of engineering, and assistants; that its engineering department supervises the construction of public and district sewers; that its city engineer is required to prepare plans, specifications and estimates of the costs of all public work, and report all violations of any contract for the doing of such work, and to superintend the execution thereof; that no person is allowed to do any blasting within said city without first obtaining from the city engineer a permit therefor, issuable only on the condition that he is satisfied that the applicant is “in every particular a safe, careful and suitable person to use and an expert in the use of all explosives used in blasting,”' and has entered into a bond, conditioned that such person will carefully and prudently use such explosive; that said city passed an ordinance for the construction of a “district sewer in sewer district No. 144, approved March 29, 1901,” and entered^ into a contract with its codefendant for constructing a sewer in said district; that said contract, among
The contract set out in the petition empowered the engineer to direct the “mode” of doing the work, and provided that if any person “refused or neglected” to obey his instructions, or appeared to him
The petition also pleaded that the legal effect of the contract vested the defendant city with full control and direction as to the manner of doing the work, the materials to be used, and the result to be accomplished in its entire performance.
To this petition, the defendant city interposed a general demurrer, which was sustained. Plaintiff voluntarily dismissed as to the defendant Construction Company, and appealed from the order sustaining the demurrer and dismissing his petition.
I. In considering this appeal it must be constantly borne in mind that Kansas City is a municipal corporation, and, as such, possesses a double capacity- — -the one public or governmental, the other private or contracting; that in the exercise of its first function it can incur no civil liability to-any person; that in the exercise of its second faculty it is suable by any aggrieved person, and is subject to the same control which the courts exert over all persons; that in the work of constructing sewers, whether directly or by letting to contract, Kansas City acts only within its business powers; and for its contracts and torts in the prosecution of that work is open to suit in the same manner and to the same extent as a private person doing or causing to be done the same work. [Donahoe v. Kansas City, 136 Mo. 665; Dolan v. Laclede Gas Light Co., 145 Mo. 550; Ely v. City of St. Louis, 181 Mo. 723; State ex rel. v. Gates, 190 Mo. l. c. 550; Barree v. Cape Girardeau, 197 Mo. l. c. 389; Broad
II. Plaintiff’s petition must be reviewed under the rule prescribed for that purpose by statute, to-wit: “In the construction of a pleading for the purpose of determining its effect, its allegations shall be libei'ally construed with a view to substantial justice between the parties.” [R. S. 1909, sec. 1831.] Now, the petition in this case is met by a general demurrer only. This form of attack does not reach any indefiniteness or imperfection of statement less than a total omission of all allegations from which any cause of action may be fairly implied or inferred. [Rodgers v. Fire Ins. Co., 186 Mo. l. c. 255-6 ; Eads v. Gains, 58 Mo. App. l. c. 594; State ex rel. v. Carroll, 63 Mo. 156; Marie v. Garrison, 83 N. T. 14-23.]
The only defense urged by the defendant in this case is that the allegations of the petition demonstrate that the contract between it and the contracting company created the relation of owner or proprietor and independent contractor; and, hence, that it is not responsible in damages either to the public at large or the servants of the contractor for any injury caused by the wrongful or negligent conduct of the contractor or its representatives in the performance of the work. In order to maintain this defense, the defendant city must show from the allegations of the petition that relation was legally created. There are cases in which it is held that the owner or proprietor may be
This reduces the matter to a single issue of law, based upon the fair legal intendment of the facts pleaded. Does the transaction between the parties show as a necessary legal conclusion that the Construction Company became an independent contractor, as that status is,defined by law? .
If one person is set to work upon the property of another, he must act in one of two capacities: first, as the servant or agent of the owner, who is therefore responsible for his acts in the course of his employment; or, second, as an independent contractor, by virtue of a contract sufficient in law to create that relation, in which case Ms torts and negligencies cannot be imputed to the owner by Ms servant or the public. There is no middle position which can be occupied by one person who is in possession and at work on the property of another by the owner’s consent or permission. He must be there either on behalf of the owner or on Ms own behalf under a- valid contract to that effect. For he could' only be on the premises otherwise by a trespass, and that is neither claimed nor could it be claimed under the case made in this petition. Now, the law has distinctly and positively
First. As to the necessity of contracting with “a competent and fit person.” The case was this: The defendant was excavating his lot for the purpose of erecting a house thereon. The excavators were independent contractors. Plaintiff was injured by a fragment of rock thrown into the air by the blasting made by the excavators contrary to the safeguards of a city ordinance. The court held that the ordinance in question was a wise and valid regulation and made for the protection of persons and property from injury, and had it been observed the injury to plaintiff “would not probably have occurred;” that the evidence showed that the owner was acquainted with the careless methods of blasting adopted by the contractors, and that this would entitle the plaintiff to recover. Adding, “An employer cannot relieve himself from liability by giving the contract to one who is known to be incompetent or negligent.” citing cases.
The basic idea of this principle is, that a person exercising a special calling must possess reasonable skill and qualification for that work, without which he is not in reality a contractor, builder, architect o.r manufacturer, as the case may.be; and that the owner, having knowledge of such deficiency, cannot supply it by mere agreement and thereby make him in law what he is not in fact. The effect of these decisions is in strict accord with the foregoing definition which they apply as the test of the status of an independent contractor. Hence, where the contract of the owner fails on account of the known incompetency of the ostensible independent contractor to create that relation with.him, the contractor is thenceforward only to be re
Again, the right of an adjoining proprietor for damages to her property caused by the excavating work of an independent contractor engaged in the service of another, was held to exist against the owner who employed the contractor, if the petition had stated that the work was in its nature dangerous to the property of others, the court saying: “In cases of this character it seems that the principal is liable for any injury that is occasioned by reason thereof, notwithstanding the relation of respondeat superior may not exist, and the party doing the work is an independent contractor.” [Crenshaw v. Ullman, 113 Mo. l. c. 640, citing Thompson on Negligence, sec. 24, p. 901.]
Again, the job of lowering signs had been let to an independent contractor. A passer-by was injured. The owner and not the contractor was sued. The court held that a recovery could be had, adding: “But the injury in the case at bar resulted directly from the acts called for and made necessary by the contract, that is, the changing and replacing of the sign, and not from acts which were merely collateral to the contract; and if by the negligence and carelessness of the men handling the sign it fell upon and injured plaintiff, the company is liable as if it had directly performed such acts.” [Loth v. Columbia Theatre Co., 197 Mo. l. c. 354, citing Bridge Co. v. Steinbrock, 61 Ohio St. 215; Deming v. Railroad, 169 N. Y. 1; Inhabitants of Lowell v. Railroad, 40 Mass. 24; 16 Am. & Eng. Ency. Law (2 Ed.), 196.]
It is not claimed that these decisions do not settle the principle that an owner cannot shift to another Ids duty to see that “work attended with danger,” if
We have been totally unable to find any precedent which announces a logically tenable ground for the doctrine that the owner, resting under a personal duty east upon him by law as an essential incident to his ownership of property, may commit a breach of that duty without incurring liability to any person thereby injured, whether his own servant or the servant of one who (as contractor with the owner for doing that duty) negligently fails in its performance, or to a
The next objection is as to character of the work. Was this work “attended with danger to others?” In the cases illustrative of dangerous work, above cited, we find that it was held, to apply to turning over to an independent contractor the task of remodeling a building. The danger in that case grew out of the falling of an existing wall, caused by the pulling away of a prop by one of the servants of the contractor, to the injury of another. In the next case the danger arose to adjoining property from excavating work necessary to the erection of a building, done by an independent contractor. In the third case, the danger ensued from the work of lowering a sign attached to a projecting beam in front of the Columbia theatre. In each of these cases it was expressly adjudicated that the given work was “attended with danger to others.” In the case at bar the contract called for blasting by dynamite a mile and a third (2450 yards) of solid rock. Is it conceivable that this work was less dangerous than the three former instances in which it was so held? Is it not clear that the destructive natural force called into play by igniting sticks of dynamite inserted into bodies of solid rock is infinitely more dangerous than remodeling a standing wall, or excavating a cellar, or lowering a sign ? No possible misapprehension existed in the minds of the city authorities, for they passed a law that this particular work (blasting) should not be done within the limits
We think in reason, experience, authority, and from the very terms of the contract made by the city, it is evident that the work of blasting as stipulated for was “attended with danger to others,” and that-this fact was known to the city at the time of the letting of the contract; and that the petition under review also states a prima facie cause of action against said city for the injury to plaintiff, caused by the negligence of the contractor or its representatives in the prosecution of the work.
' This reasoning does not involve, as has been suggested, the liability of 'the owner to the independent contractor himself. The latter plies Ids particular trade for livelihood. This implies a representation on his part that he is possessed of the requisite skill and competency. When he solicits employment in his own calling, he cannot ask the employer, who knows nothing of his special craft, to indemnify him against his own lack of qualification for his own trade, or against his own negligence. Such a notion is contrary to the axioms of the law. Volenti non fit mjuria. [Broom’s Leg. Maxims (5 Ed.), note p. 270.] On the other hand, the mere laborers employed by the person assuming to be a fit contractor have no skill in his particular mystery, nor are they expected to do other
The principle we affirm is, that in turning over work “attended with danger” to a contractor, the owner assumes no liability whatever with respect to him; but does assume that the dangerous work shall be performed with ordinary care, and that this responsibility extends to the common laborers, whom the owner knows must be employed by the contractor to assist in doing the work, as well as to strangers.
The case of Blumb v. Kansas City, 84 Mo. 112, is in irreconcilable conflict as to its ruling with the established law in this State. In the Blumb case, a lady was using a street whereon a contractor with the city was engaged in blasting to construct a sewer. The evidence showed that the city engineer who superintended the work had knowledge “that the men engaged in the work were guilty of carelessness in making the blast; ’ ’ that neither the city nor its engineer took any steps “to stop this careless blasting.” Plaintiff recovered $2000. It was nevertheless held that this should be reversed, and that it was not necessary under those facts for the city “to suspend or cancel the contract let.” If that doctrine could be sound, then the established rule in this State, enounced in every other case in which it has come up for review, that the city is under an absolute duty to keep its streets reasonably safe, must be repudiated. This undelegable duty on the part of the city is, however, maintained in the following cases: Ryan v. Kansas City, 232 Mo. 471; Benton v. St. Louis, 217 Mo. l. c. 700 (the latter citing all the cases); Lindsay v. Kansas City, 195 Mo. l. c. 178. The duty in question is nowhere stated with more pith and clearness than by Lamm, P. J., in the case of Benton v. St Louis, supra, where it is said:
IV. Wholly independent of the liability of the defendant city arising from its abortive attempt by contract to make a competent contractor out of a corporation and its managers and representatives who it knew at the time of the contract were not such, and wholly aside from its effort to delegate to such corporation and persons its absolute duty to be responsible for the careful performance of work attended with danger, there is another distinct ground for the creation of a cause of action against the defendant city, which is positively alleged and stated in the petition in this case. It is this. The petition alleges that the city contracting through its engineer with the Construction Company stipulated and covenanted that each and all of its ordinances applicable to the doing of the work in question should be complied with (including the ordinance regulating blasting and requiring competent and licensed persons for that duty). This obligation assumed by the city enured to the benefit of all persons who would be injured by its breach. The defendant city, according to the allegations of the petition, committed an intentional and known breach of this contract and duty assumed by it and became liable for this neglect to any person thereby injured. This was not a case of liability arising from the failure on the part of the city to enforce a police ordinance. But the case made by the petition and the contract entered into by the city, is one for negligent breach of duty to require and prescribe safeguards to be employed in the doing of the work. That an action may be brought against the city which has let out work on its streets, for negligence, and that the ordi
For this reason we hold that the petition under review stated a cause of action entirely apart from any relationship, if such could have existed, which is denied, of employer and independent contractor on the part of the city and its codefendant.
These conclusions put no obstacles whatever in the way of improvement and progress, for the defendant city has ample power and is charged with the duty under its own laws to take bonds indemnifying it against any liability arising in the manner stated in this petition.
The general demurrer in this case should be overruled, and the city required to answer or make other defense to the causes of action stated in the petition.
