Lancaster v. Connecticut Mut. Life Ins. Co.

• Decision Date: 20 June 1887
• Citation: 5 S.W. 23,92 Mo. 460
• Parties: Lancaster, Trustee, v. The Connecticut Mutual Life Insurance Company, Appellant
• Court: Missouri Supreme Court

5 S.W. 23

92 Mo. 460

Lancaster, Trustee, v. The Connecticut Mutual Life Insurance Company, Appellant

Supreme Court of Missouri

June 20, 1887

Appeal from St. Louis Court of Appeals.

Affirmed.

Dyer Lee & Ellis for appellant.

(1) The trustee's right of action was lost when he ceased to be trustee. Huckabee v. Billingsley, 16 Ala. 414; De Bervise v. Sanford, 1 Hoff. Ch. 195. (2) While two counts in the petition to meet the proof are permissible (Brinkman v. Hunter, 73 Mo. 172), there can be but one recovery and satisfaction. Owens v. Railroad, 58 Mo. 394; Brinnell v. Railroad, 47 Mo. 239; City etc., v. Allen, 53 Mo. 49. (3) The jury were not justified in assuming that the abutting wall fell first, and their finding in this respect is in entire disregard of the testimony and against the instruction of the court. (4) The trial court committed manifest error in leaving the jury to construe the plans and specifications, and determine whether they were sufficient to secure a safe construction of the work. (5) The court also committed error in refusing defendant's instruction, to the effect that if the injury to plaintiff's property was caused by the falling of the party wall, and that this wall fell by reason of its own inherent weakness and defect, then plaintiff could not recover.

Broadhead & Haeussler for respondent.

(1) The defendant is liable, under the circumstances of this case for the damages caused to plaintiff by the falling of the party wall caused by the act of defendant's agents and employes. Crawshaw v. Sumner, 56 Mo. 523; 2 Washburn on Real Property, 330-332; Earle v. Beadleston, 42 N.Y. 294. (2) If the manner in which the work was to be done, under the terms of the contract, did make it dangerous to plaintiff's property, and injury did result therefrom, or if defendant reserved to itself, to any extent, a control over the contractors as to the manner in which certain work should be done, or if the manner in which it was to be done was left open for the directors of the defendant, and defendant failed to give proper directions on that subject, by reason of which the damage ensued, then defendant is liable. Horner's Adm'r v. Nicholson, 56 Mo. 220; Lottman v. Barnet, 62 Mo. 162; Garretzen v. Duenckel, 50 Mo. 104; Howe v. Newmark, 12 Allen 49. (3) The throwing down of the plaintiff's house is the injury complained of. If part of the injury was caused in one way and part in another, although both facts may be stated in the pleadings, there is really but one count, or cause of action, because the cause of action is the throwing down of the building.

OPINION

Black, J.

The plaintiff and the defendant owned adjoining lots fronting on Fourth street, in the city of St. Louis, extending back to an alley. There was a five-story brick building upon each lot, the wall between them being a party wall. The first count of the petition in substance states that, in September, 1881, the defendant erected upon its property a brick wall, so as to abut against the party wall; that the same was carried to a great height; that the defendant negligently caused the wall to be erected in such an insecure and defective manner, and with such insufficient foundation and supports, that the supports gave way, and the wall fell upon plaintiff's building, crushing it, to the damage, etc. The second count states that the defendant erected the new wall in such a manner as to bear with great weight upon a girder, which was negligently inserted into the party wall without providing a sufficient foundation or supports therefor; and that defendant negligently omitted to employ competent and skilled men to superintend and construct the wall and other alterations of the old building. In other respects this count is the same as the first.

The defendant's property is known as the old St. Nicholas Hotel, and the plaintiff's, which is to the south of the other, is known as the Nelson House. Plaintiff's building extended from the street, on the east, to the alley, on the west, and the St. Nicholas Hotel building extended west, to within some thirty-five feet of the alley. It is shown that the greater portion of the party wall between the St. Nicholas and the alley was in a bad condition, was cracked, and the bricks, in places, were well rotted, from heat and moisture from a laundry, attached to the St. Nicholas. The condition of this portion of the party wall was well known to both parties. The defendant determined to convert the St. Nicholas Hotel into store-rooms, and, to that end, entered into a written contract, plans and specifications, with Messrs. Barnes & Morrison, contractors and builders. It appears that the plans and specifications were prepared by the contractors, but it is equally clear that they were approved by the defendant, at the home office, and were approved and signed by the defendant's agents, Messrs. Budd & Wade, at St. Louis. In the execution of the contract, according to the plans, it became necessary for the contractors to remove the rear wall of the St. Nicholas Hotel, and place it some six or eight feet towards the alley -- twenty-five feet east of the alley. This new wall rested upon a girder, and extended to a height of four stories above the ceiling of the first story. The north end of the girder was supported by the defendant's north wall, and the south end was inserted in the party wall. The girder was of two pieces, joined at the center, and there supported by an iron column. After the new wall had been built, or nearly completed, it and the rear wall of the plaintiff's house fell down.

There is much evidence to the effect that the party wall, at the place where the new one joined it, was weak, to the knowledge of the defendant's agents, and that the only safe way to build the new wall was, either to place a pillar, or abutment, next to the party wall, and let the girder rest on that, or to firmly anchor both ends of the new wall into the side walls, and that neither was done. There is evidence to the effect that, by building an abutment, or placing a pillar of iron at the party wall, there would have been no danger. On the other hand, there is evidence tending to show that a pillar, or abutment, was not necessary; that the party wall, at the point of juncture, was sound and safe; that the party wall, next to the alley, fell from its inherent weakness, dragging with it the new wall, and other portions of the party wall, to a point eight or ten feet beyond the place where the two walls joined.

The jury returned the following verdict: "We, the jury, find for the plaintiffs, on the first count, and assess their damages at one dollar. We, the jury, find for the plaintiffs, on the second count in the petition, and assess their damages at the sum of $ 4,900."

1. A question made by the appellant is, that Barnes & Morrison were independent contractors, and they, and not the defendant, are liable for the injuries resulting to the plaintiff's house. If the negligence which produced the injury was not in the workmanship, or the materials to be furnished by the contractors, but in the plans and specifications, then the defendant cannot be relieved from liability, or shift the responsibility to the contractors. Horner v. Nicholson, 56 Mo. 220; Morgan v Bowman, 22 Mo. 538. It was the duty of the defendant to use all reasonable care and caution in providing plans and specifications, to the end that a building, when constructed in accordance with them, would not be dangerous to the plaintiff's property. ...