Bell v. Wagner
| Decision Date | 31 January 1944 |
| Parties | Ben Bell, Appellant, v. John W. Wagner, Respondent |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court; Hon. Emory H. Wright, Judge.
Reversed and remanded.
Charno & Drummond and John A. McGuire for appellant.
(1) The court erred in giving defendant's Instruction A in the nature of a demurrer to the evidence and in taking the case from the jury, because under Count II of plaintiff's petition, plaintiff produced sufficient competent evidence to justify submission to the jury of the cause of action alleged in such count. Walter v. Stetson (Mass.), 38 N.E 18; Weston v. Arnold (Eng.), L. R. 86 L. 1084; Franke v. City of St. Louis et al., 110 Mo. 516, 19 S.W. 938; Cech et al. v. Mallinckrodt Chemical Co., 323 Mo. 601, 20 S.W.2d 509; Bond v. Weiner, 346 Mo 258, 140 S.W.2d 25; Hollister v. A. S. Aloe Co. (Mo.), 156 S.W.2d 606; State ex rel. City of St Charles v. Haid et al., 325 Mo. 107, 28 S.W.2d 97; Wills v. Bererich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125; Guthrie v. City of St. Charles, 347 Mo. 1175, 152 S.W.2d 91; Gray v. Columbia Terminals Co. et al., 331 Mo. 73, 52 S.W.2d 809; Barrett v. St. Louis-Southwestern Rwy. Co. (Mo.), 143 S.W.2d 60; Finley v. St. Louis-San Francisco Rwy. Co. (Mo.), 160 S.W.2d 735; Trower v. M.-K.-T. R. R. Co., 347 Mo. 900, 149 S.W.2d 792; Van Brock v. First Natl. Bank (Mo.), 161 S.W.2d 258; Burt et al. v. Nichols, 264 Mo. 1, 173 S.W. 681; Rau v. Robertson (Mo.), 260 S.W. 751; Johnson v. Chicago & E. I. Rwy. Co., 334 Mo. 22, 64 S.W.2d 674. (2) Under Count I, a jury question was made on defendant's negligence in erecting extended wall upon insufficient party wall. 31 C. J. S. 654, sec. 74; Venne v. Damron Bros. Co., 192 Wisc. 249, 212 N.W. 796; Obert v. Dunn, 140 Mo. 476, 41 S.W. 901; 38 A. J. 712, sec. 60; Lancaster, Tr., etc. v. Conn. Mutual Life Ins. Co., 92 Mo. 460, 5 S.W. 23; 47 C. J. 1330, sec. 18; 47 C. J. 1343, sec. 40; 47 C. J. 1347, sec. 50; 40 Am. Jur. 505-6, sec. 34; Glover v. Mersman, 4 Mo.App. 90; Harber v. Evans, 101 Mo. 661, 14 S.W. 750; McBride Realty Co. v. Grace, 223 Mo.App. 588, 15 S.W.2d 957; Mollenhauer v. Wolfe, 193 N.Y.S. 348; Bright v. Bacon, 131 Ky. 848, 116 S.W. 268; 47 C. J. 1331, sec. 19; Cooper v. Sillers, 30 App. (D. C.) 567. (3) Jury question was made on issue of defendant's liability as for maintaining a nuisance. Streckenfinger v. Bullock (Mo. App.), 60 S.W.2d 661; Lynds v. Clark, 14 Mo.App. 74; Reinhardt v. Holmes, 143 Mo.App. 212, 127 S.W. 611. (4) Defendant is liable as owner of dominant estate. Stotzenberger v. Perkins, 332 Mo. 391, 58 S.W.2d 983; Schuricht v. Hammen, 221 Mo.App. 389, 277 S.W. 944; 19 C. J. 980, sec. 228; 19 C. J., 981, sec. 230; 17 Am. Jur. 1003, sec. 108; Jackson v. Bruns, 129 Iowa 616, 106 N.W. 1.
Henry L. Jost and Reinhardt & Schibsby for respondent.
(1) Where the testimony introduced by a plaintiff shows that the damage suffered by him may have resulted from several causes for only some of which the defendant would be liable, the plaintiff must prove with reasonable certainty that the damage arose from a cause for which the defendant is liable, or be non-suited. Wills v. Berberich's Delivery Co., 345 Mo. 616, 134 S.W.2d 125, 130; Burt v. Nichols, 264 Mo. 1, 173 S.W. 681. (2) The duty of an adjoining landowner, as such, to the tenant of the adjoining landowner, is no greater than the duty he owes to the landlord. Reinhardt v. Holmes, 143 Mo.App. 212, 127 S.W. 611; Mehaken v. Gillespie, 329 Mo. 51, 43 S.W.2d 797; Meade v. Montrose, 173 Mo.App. 722, 160 S.W. 11. (3) Owners of a party wall can have no cause of action against one another for damages caused by the faulty condition of the wall. Swentzel v. Holmes (Mo.), 175 S.W. 871; Reinhardt v. Holmes, 143 Mo.App. 212, 127 S.W. 611. (4) The wall involved here was a party wall all the way up, and included the upward extension built by Wagner, whether or not the adjoining owner actually used such extension. 47 C.J. 1349; Swentzel v. Holmes (Mo.), 175 S.W. 871; Glover v. Mersman, 4 Mo.App. 90, 93.
This is an action for damages to a stock of paint, wall paper, window shades, and to plaintiff's business, caused by the falling of a wall owned by the defendant, upon the building in which the stock of goods was located. At the conclusion of plaintiff's testimony the court marked "Given" defendant's instruction in the nature of a demurrer to the evidence, resulting in an involuntary nonsuit being taken by plaintiff, and in this appeal.
The facts show that defendant acquired, in the year of 1892, the real estate located at 1409 Grand Avenue, in Kansas City, consisting of a lot fronting twenty-five feet on Grand Avenue with a two story building thereon. The building extended across the front of the lot and was about sixty feet in depth but the lot extended farther toward the rear.
Plaintiff's stock of goods was located in an adjoining building to the south known as 1411 Grand Avenue. The record is indefinite as to whether this building was in existence at the time defendant acquired his building; but the record does show that it was either erected or rebuilt about the year 1900. There is no evidence tending to show that the south wall of defendant's building was used as a common wall in conjunction with any building to the south that may have been there prior to 1900. However, the undisputed evidence shows that it became a common wall for the two buildings when the building to the south was built or rebuilt about the year 1900, notwithstanding that there was no agreement entered into relative to it.
In 1892, when defendant acquired his building, he built a one story addition to the back, but not all the way to the rear end of the lot. However, in 1902 or 1903 the one story building was continued to the rear of the lot. The two additions are not involved in this case. In 1902 defendant's two story building was altered. At that time he was conducting an undertaking establishment therein and he erected a new ornamental front to his building and tore out the ceiling of the first floor and the roof of the second floor in order to create a dome chapel covering an area of 18 x 30 feet. There were no pillars placed in the chapel. The chapel adjoined the south wall of the building, there being a hallway to the north of the chapel. He did not ask the consent of the owner of the south building about this remodeling, but apparently no protest was made to defendant making these alterations. To accomplish the change in his building defendant built the south wall upward (the petition alleges for an additional ten feet) and placed four large ornamental windows along the wall near the top and erected a dome roof over the building. Witnesses estimated that defendant's south wall extended from ten to twenty feet above the roof of the south building after the improvements were made. Defendant remained in his building for thirty-eight years after remodeling it. No repairs were made to his building after 1902 when the building was remodeled. In 1930 he moved and had tenants in his building, off and on, until 1934. Thereafter the property stood vacant. Defendant went there about every six months to have the place cleaned up.
Plaintiff leased the south building from the owner for a term beginning March 1, 1937, by a written lease, in which it was provided that he took the premises in their present condition and that he should keep same in repair.
On June 15th, 1937, the entire south wall of defendant's building, including the extension, fell down, with the exception of portions near the top and at the ends. The inside of the building to the south also went down. Defendant's building remained intact except as to the south wall.
It appears that the building to the south, or plaintiff's building, was two stories in height as far back as the rear of defendant's original building and from that point on it was a one-story building, the one story running but a short distance. The roof of the building was flat. There is no evidence as to whether the south wall of any part of defendant's building constituted a common wall with the one story part of plaintiff's building. No part of defendant's building, that he constructed to the rear of his original building, fell when the common wall aforementioned fell and the one-story part of plaintiff's building remained intact.
Witnesses estimated the size of plaintiff's store building as of twenty-five foot frontage and approximately seventy-five to 100 feet long. The first floor of plaintiff's building was divided by a partition located about ten feet from the back end of the store and about seven or eight feet high. The height of the first floor of plaintiff's store room was approximately twelve feet. The second floor and basement were not used by plaintiff although they were covered by his lease.
Plaintiff carried several hundred gallons of paint on the north side of his store room but the shelves were not attached to the wall. He also had a rack consisting of 100 wooden tills, each till built to carry a roll of wall paper weighing about thirty-five pounds. This rack was near the north wall and to the rear of the paint but was not attached to the wall.
Plaintiff's witness, White, testified that about six months before the wall fell, he was seeking a new location for his company, and was shown defendant's building by a real estate agent that he went inside of the building and made an inspection; that the first floor was in "fairly good repair"; that the south wall of the second floor "had very little plaster on it, was badly water stained, had the appearance of leaking badly, moisture coming through the wall"; that he and the ...
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