Stocker v. City of Richmond Heights , 235 Mo. App. 277 ( 1939 )

ON MOTION FOR A REHEARING. Defendant, on motion for a rehearing, complains that we have overlooked cases in other jurisdictions, cited and relied on by it, as follows: City of Los Angeles v. Industrial Accident Commission (Cal.), 72 P.2d 540; Hoover v. Independent School District, 220 Iowa 1364; Shelton v. City of Greenville,169 Tenn. 366, 87 S.W.2d 1016; City of Phoenix v. Parker,49 Ariz. 382; and Todaro v. City of Shreveport (La.), 170 So. 356.

The Los Angeles case involved the right or not of an injured workman to compensation from the City of Los Angeles under the Workmen's Compensation Law of California. The workman was employed by an independent contractor of the Works Progress Administration. It was held that the city was not liable for compensation because the city was not an employer of the workman. Clearly, that case is not in point here. The same is true of the Hoover case and the Shelton case.

In the Phoenix case it was held that the city was not liable to a pedestrian for injuries sustained by reason of the negligence of an independent contractor under contract to construct and complete storm sewer system improvements as a Progress Works Administration project, where the injury occurred outside the city limits. It was so held because the contractor being an independent contractor there was no relationship of master and servant between the contractor and the city so as to make the city liable under the rule of respondeat superior. That case is obviously not in point here.

In the Todaro case it was held that the employees of the Federal Civil Works Administration engaged in demolishing a building on fairgrounds owned by a municipality were not employees of the municipality and hence the municipality was not liable under the rule of respondeat superior for injuries sustained when the canopy of the building being demolished fell upon a member of a construction crew on a sidewalk adjacent to the building. Nevertheless, the municipality was held liable under the rule that a municipality is liable for the negligence of an independent contractor in the performance of nondelegable duties. That case clearly does not support the defendant's view. On the contrary, it supports the view expressed in our opinion.

The Commissioner recommends that defendant's motion for a rehearing be overruled.