193 Mo. App. 516 | Mo. Ct. App. | 1916
Defendant was engaged to construct a public sewer for Kansas City and under the provisions of the charter of that city the contract was let to him as the best competitive bidder and he was to receive his pay in tax bills issued against property holders. The land in which the sewer was to be dug and blasted had been condemned by the city for that purpose and its course led by plaintiff’s house. In blasting for the excavation, such vibration resulted that plaintiff’s house was damaged. She brought this action against defendant and recovered judgment in the circuit court. Defendant conceiving that there was a constitutional question involved took an appeal to the Supreme Court. That court decided there was no constitutional question in the case and transferred it to this court for disposition according to law.
The evidence shows that blasting was necessary in doing the work and there is no evidence that it was negligently done. Defendant concedes plaintiff suffered damage, but insists that the city alone was liable; and denies that our rule announced in Johnson v. Railroad, 182 Mo. App. 349, can be rightfully applied in this case. In that case, in an opinion by Judge Johnson, we held that where a railroad company in
' But we find ourselves without a good reason for distinguishing between the wrongful act of the owner and the same act done for the owner for hire. Liability for a wrong cannot be avoided by the plea that, while it was voluntarily committed, without negligence, it was done at the instigation or request of another.
"We are cited to 4 Dillon on Municipal Corporations (5 Ed.), sec. 1722 where, in preceding sections, the distinguished author is discussing the nonliability of á city, or other employer, for the acts of an independent contractor. . That part of the section cited is as follows:
“The general rule is stated in the preceding section, (nonliability for the acts of independent contractors) but it is important to bear in mind that it does not apply where the contract directly requires the performance of a work intrinsically dangerous, however skilfully performed. In such a case, the party authorizing the work is justly regarded as the author of the mischief resulting from it, whether he does the work himself or lets it out by contract.”
. That statement merely asserts that where the work, though skilfully performed by an independent contractor, is intrinsically dangerous, the employer is liable. But the author does not intimate, or intend to imply, that the contractor would not also be liable. That no such implication was intended is shown by
‘ ‘ Conformably to the distinction above. drawn,- a corporation is liable for the wrongful act of the contractor, under the' circumstances which show that it, as cléarly as the contractor, -was' the' author and promoter of' the injury; for instance, where the prosecution of the work as authorized by the corporation necessarily produces the injury, the corporation, as well as the contractor,'is responsible for the damage.”
The judgment' should he affirmed’.