*1 277 municipal Heights, Respondent, Richmond Stocker, Anna 1116. (2d)W. corporation, S. lant. Appel Opinion Appeals. filed 1939. Nov. Court of St. Louis B. respondent. Francis Stout *2 ap- Feigenbaum for
Philip Foley, A. M. L. A. Robertson and Leon pellant.
SUTTON, damages commenced in the C. This is action County Circuit 1937. September Court of Louis petition is as follows: Rich- plaintiff “Comes now and states that defendant Heights municipal mond at herein a and was all times mentioned corporation, administering organized, such. existing its affairs as
“For against defendant, plaintiff a cause of states action the above that she in fee is and all times mentioned herein the owner was at simple Heights, property located said of Richmond in the and known and Avenue; numbered that said as Ethel Missouri,
property is and at all improved times mentioned herein with four-family dwelling brick and garage. house “Plaintiff further states that the defendant, during the months of July June, August, 1937, and arranged and contracted to have sewer constructed in the Heights of Richmond prop- and under erty abutting plaintiff’s property; that said sewer constructed by Progress the Works Administration of the United States Govern- ment. “Plaintiff further by states that work said was done the
Progress Administration for and on behalf at defendant and the request the instance and agreement of the defendant and under an arrangement whereby and Progress said Works the Administration (cid:127) agreed to construct the said sewer for the the and for- defendant and use benefit of the defendant. ‘‘- Plaintiff that, further in states the course of the construction of sewer, dynamite said explosives and other used out were to blast stone, rock and material to construct tunnel of the said other sewer; that the explosions said surrounding caused in vibration property and ground caused vibration in plaintiff’s property proximately above described and building caused the garage, brick and plaintiff’s with which property improved, damaged thereby, to be floors, in ceilings, roof, walls, that the chimneys, stairways, windows, parts doors and buildings broken, other of the were cracked and separated parts from buildings contiguous thereto. “Plaintiff further by states that damage reason of to her property, aforesaid, damaged as she has been in sum three thousand dollars all as a proximate direct and explo- result sions damage aforesaid and the property. resultant to her
“Wherefore, plaintiff prays judgment against defendant for the sum of three thousand dollars and her costs in behalf expended this ’’ and to accrue'. jury
The trial with a resulted in a judgment verdict and plain- tiff for. two thousand dollars. appeals. Defendant assigns
Defendant overruling error here for the its demurrer petition. urges to the Defendant in support assignment of this that petition to state action, fails facts sufficient to constitute a cause of that, (1) petition allege negligence in resulting damage does not plaintiff’s building, (2) petition shows on its face construction of the was under the control, manage- sewer exclusive ment supervision the Works Administration as independent contractor, superior so that relation of no and subordi- liability nate existed under respondeat raise doctrine superior, (3) allegation there is no petition question authority constructed or any virtue ordinance duly ordinances city. enacted defendant
283 damages liability to for Negligence not an essential create is element necessary blasting. Hence, plead negligence. to it is not due-to [Tay & 516, 527; 186 W. Gibert v. Walsh, App. 193 Mo. S. Evens lor v. 790; 260 (Mo. App.), S. W. Johnson v. Kansas Fire Brick Co. Howard 349, 456;W. Blackford Co., App. 182 Mo. 170 S. City R. Terminal 157, 112 W. Co., App. 132 Mo. S. v. Heman Const. 287.] bring opera that the relations such into Nor is it be as to essential general non- respondeat superior. The rule the doctrine of of tion city, employer, independent for the liability of other acts or an requires the contractor, apply directly where does not the contract dangerous. Walsh, intrinsically v. performance work [Taylor City 527; 186 W. Paul & App. 516, 193 Mo. S. Kansas Short (Mo. App.), (2d) & 105 Line R. v. Fid. Guar. Co. S. W. Co. U. S. 14, 1. c. 21.] necessary plead the under which
Nor is it to ordinances ordinance Howard, App. 253; Roy 88 work was done. v. Mo. v. the [Devers 332, MacMurray-Judge City, App. 132; 204 Mo. 224 S. W. Kansas Louis, City 608, 138 Mo. 39 W. Architectural Iron Co. v. of St. S. City
467; Springfield, 107; Werth v. 78 Mo. of St. Louis v. Lang, 33 W. 412, 131 Mo. S. 54.] petition demurrer the properly The to was overruled. petition
We also think defendant’s motion to make the more definite sufficiently properly petition alleges and certain was The overruled. the facts. It is neither necessary proper essential issuable nor to plead evidentiary facts.
Moreover, by answering going defendant over and to the trial on overruling exception merits waived its to make its motion to petition Mfg. more and certain. definite v. Schlueter [Kitchen Co., 1179, (2d) 676; 323 20 W. Mo. S. Green v. St. Louis-San Francisco Ry. Co., 517, (2d) 784; 224 30 App. Leveridge, Mo. S. W. Sauter v. 981; 615, 103 Mo. 15 Kramer Light S. W. v. Kansas Power & Co., 369, 43; Sperry Hurd, 311 Mo. 279 W. 628, S. 267 Mo. (Mo.), 170; 462;
S. W. Burnett v. Hudson 228 S. W. Mahan v. Bank, Merchants’ 160 Mo. 61 W. S. 676.] by assigned Error is defendant for refusal its instruction in ’ assignment to evidence The put nature demurrer grounds urged support petition. in of the demurrer same to the allegations petition. of the supports the Defendant The evidence Progress arrangement with the entered into a contract or The construction of the sewer defendant. Administration for the arrangement pursuant application made to an contract or Progress The application to the Works Administration. defendant through contract writing officers. The defendant’s made dynamite blasting provided operations. powder for the use of city engi- provided superintendents It work also for the of the city amount- neer cost of the work and for contributions ing $63,631. appears It that work done was extension of the system city part of the and became thereof. work was It supervision under the of the Works done Administration. provided that also tbe contract the work would financed on be city by part special appears a bond issue or tax bills. It city engineer supervised inspected to the the work seeing city. extent it conformed to ordinances *7 public dishonestly not that will will assume officers act Courts dishonorably, and, public private ends, or use their trust for in the have, contrary,, proof presumed to will absence of the officers be to in their powers public acted the of in the exercise interest of the authority granted and within the them. The an ordi enactment of duly authorizing sufficiently appears nance or ordinances the work City, at least from 204 inference the facts shown. v. Kansas [Roy App. 332, 132; 224 W. Mo. Rockport, S. Frazier v. 199 City of Mo. App. 80, 266; Kennedy 202 Stationery S. W. & Skinner Co. v. Board City Louis, of App. 541, Education of 182 Mo. 165 the of S. W. 835.] necessarily points support assignment Other raised in this of’ are against already ruled defendant from what have we said. The a instruction the demurrer to the evidence nature of .was properly refused. assigns giving
Defendant for plaintiff’s error the Instruction of No. 1. complains duly
Defendant that the assumes the instruction that agents authorized application requested the defendant made and of ’ building the of the Administration. the reading assume, A clearly the instruction that it does not shows requires jury find, but to such fact.
Defendant complains further the instruction to define fails proper damages. complaint against measure The made general gave jury instruction is that it in its is character and a roving respect with damages. commission amount of There was no misdirection instruction or incorrect statement on the damages. If thought might measure of the defendant the instruction misleading, duty right be it its request and an instruction advising jury explicit language respecting in more the measure damages, defendant, requesting instruction, but instead of an such procured give jury substantially court to to the instruction in general language plaintiff’s as that of the same instruction. It ought complain plaintiff’s therefore not be heird to here.. instruction ample testimony showing
There difference between the damaged building damaged, value before and after it and showing. is well within such the verdict assigns for Defendant error modification of its Instructions Nos. 2, 3, 4, The record before respect and 5. us not does show what
285 be assignment modified. must therefore were The the instructions against defendant. ruled made, instructions, complaint as is Defendant’s refused to which substantially by instructions covered properly refused because were given. judgment of the circuit
The Commissioner recommends court affirmed. be Sutton, C., foregoing opinion adopted
PER is CURIAM:—The judgment as the circuit court opinion of court. McCullen, concur; Hughes, JJ., Becker accordingly affirmed. J., sitting P. member court time the not because at the not ease was submitted. Rehearing.
On Motion for SUTTON, rehearing, complains Defendant, on motion C. that we and relied jurisdictions, have overlooked in other cited cases by it, Angeles as v. Accident of Los Industrial follows: (Cal.), 540; Commission (2d) Independent 72 Pac. Hoover v. School District, Iowa, 1364; City Greenville, 169 Tenn. Shelton (2d) 1016; Parker, S. W. 382; Phoenix v. 49 Ariz. *8 Shreveport (La.), Todaro of So. 356. Angeles
The injured Los an right ease involved the of not workman compensation Angeles to from the of under the Los Compensation Workmen’s Law of California. workman was The. by employed independent Progress an Ad- contractor of the Works city ministration. It held compensa- was that the not liable for tion city Clearly, employer because the an not workman. not point case is here. The true the Hoover case is of same and the Shelton ease. In city the Phoenix case it not was held that liable to
a pedestrian injuries negligence for sustained of reason an independent contractor complete under construct and contract to storm system improvements as Administra- a Works tion project, injury city It where the occurred outside the limits. was so held because the being independent contractor contractor an there was relationship no master and between the con- servant tractor and city city so as make liable under rule of respondeat superior. obviously That in point case is not here.
In Todaro ease it employees was held that the Federal Civil engaged demolishing building Administration on a fairgrounds owned municipality a not employees were municipality and the municipality hence was not liable under the rule of respondeat superior injuries canopy for sustained when the building being fell upon demolished a member a construc- tion crew adjacent a building. Nevertheless, sidewalk municipality a liable under the rule that
municipality was is liable held independent performance contractor negligence for clearly support not the de- nondelegable That does duties. case contrary, supports expressed in it the view fendant’s view. On the opinion. our re- recommends a Commissioner defendant’s motion
hearing be overruled. foregoing Sutton, C., is opinion adopted
PER CURIAM: —The rehearing a opinion of motion for as the the court. Defendant’s McGullen, JJ., concur; Hughes, accordingly Becker overruled. J., sitting member of court at the P. not because not time case was submitted. Company, Corporation, Respondent,
Hartford Fire Insurance Bleedorn, v. Edward E. Bleedorn, Home Owners’ Elizabeth Harry Corporation, Corporation, Loan Harris John Corpora T. Loan Sluggett, Jr., Defendants. Home Owners’ Appellant. tion, (2d) 132 S. W. 1066. Appeals. Opinion Nov. 7, Court of filed Louis 1939.