On Motion for Rehearing.
Counsel for appellee Eitzman in their motion for rehearing very earnestly insist that our opinion heretofore filed in this case is in conflict with the opinion of the Court of Appeals for the Fourth District in the case of Moore & Savage v. Kopplin, 135 S. W. 1033.
The learning and ability of the great judge who wrote that opinion would make us long hesitate to express a different opinion of the law applicable to facts identical with those in that case. But the facts in the two cases-are different. In the case cited the construction of the fence in the street was shown to be unlawful, and its maintenance there-created a public nuisance, and there was evidence, as stated in the opinion of the court on motion for rehearing, showing that the contractor placed the fence in the street in-obedience to the orders and directions of the owner of the building. The holding in' that case is based upon the theory that the-owner contracted for and directed the placing of an unlawful and dangerous obstruction in the street, and upon such facts the court correctly held he could not relieve himself from liability for injury caused by such obstruction on the plea that it was placed in the street by an independent contractor.
As stated in our main opinion, the facts in the instant case show that the owner, Hermann, did not contract for or direct the construction of the fence, and there is no evidence that the placing of the fence in the street by the contractor was unauthorized, and that its maintenance there for the purposes and under the conditions in which it was maintained created a public nuisance. The ordinance under which the fence was'placed in the street granted the right to use the street to the contractor. The permit to erect the building was issued in the name of the owner of the property, but the undisputed evidence shows that it was not applied for by Hermann, and it was presumably obtained by the contractor as the contract required him to obtain it. We think it immaterial, however, who obtained the permit for the construction of the building, since the undisputed evidence shows that the erection of the fence was not included in the contract, and was not necessary in the construction of the building.
Such being the facts, we do not think that upon any principle of law or demand of justice Hermann should be held liable for the negligent manner in which the fence was' constructed, nor for the negligence of the contractor in placing his material against. *746the fence, and thus causing it to fall and injure the appellee.
We think the motion for rehearing should be overruled; and it is so ordered.