Brown v. City of Vicksburg

• Decision Date: 30 November 1914
• Citation: 66 So. 983,108 Miss. 510
• Court: Mississippi Supreme Court
• Parties: BROWN ET AL. v. CITY OF VICKSBURG

66 So. 983

108 Miss. 510

BROWN ET AL. v. CITY OF VICKSBURG

Supreme Court of Mississippi

November 30, 1914

October 1914

APPEAL from the circuit court of Warren county. HON. H. C. MOUNGER Judge.

Action by W. M. Brown and others, trustees of the King David Baptist Church of Vicksburg, Mississippi, against the city of Vicksburg and the Mississippi Lumber Company. From a judgment for defendant, both sides appeal.

Appellants trustees of the King David Baptist Church of Vicksburg Mississippi, filed suit for three thousand dollars damages against the city of Vicksburg and the Mississippi Lumber Company. The declaration, omitting the formal parts, is as follows:

"The said King David Baptist Church . . . in the year 1909 had built a frame house or building of worship, in said city . which said church house abutted on Bowmar avenue, a public street of said defendant city, and was built with reference to and about two feet above the existing and established grade of said street. Said church house was thirty-six feet wide and sixty feet long; had a foundation of brick piers eight feet apart, and had wood sills six by eight inches around and under the outside walls of the building and a similar sill lengthwise under or through the center of said building, the said sills resting upon said piers.

"Plaintiffs aver that the defendant, the Mississippi Lumber Company, undertook to and did sell and furnish materials for said building to the contracting builder thereof, and particularly the said sills for said building, when and where it became and was the legal duty of said defendant lumber company to sell, furnish, and supply reasonably sound and suitable sills for said building, yet, notwithstanding its said legal duty in this regard, the said Mississippi Lumber Company negligently, unlawfully, and knowingly sold, furnished, and supplied, for use and incorporation in said building, knowing, or ought to have known, at the time the defective condition of the same and its intended use and purpose, a defective, weak, rotten, and unsound sill timber which was used in the construction of said building as a part of the said center line sill of said building, to wit, at the north end thereof.

"Thereafter, in the year 1911, the said defendant city unlawfully took and damaged the said private property of the plaintiffs for its public use, without any or due compensation having been first made to the plaintiffs in any or the manner prescribed by law, by changing and raising the said established grade of said Bowmar avenue of said city about ten or more feet in front of said church house, whereupon plaintiffs demanded of said defendant city compensatory damages for said unlawful injuries to said property. Thereupon, in pretended response to said demand of the plaintiffs, the defendant city, in an attempt to lessen or compensate plaintiffs' damages aforesaid, undertook to and did raise and elevate said building up to the said new or raised grade of said street, so that the floor of said building would be and was about twelve feet from and above the subjacent ground and about even with or a little above the said new grade of said street, when and where it became and was the legal duty of said defendant city to raise and support said building in a reasonably safe, skillful, and workmanlike manner and condition, yet, notwithstanding the said city's legal duty in this said regard, it carelessly, negligently, knowingly, improperly, and unlawfully raised and supported said building, in that the said building was so raised or "jacked up" at one side, end, or corner at a time as to disjoint, dislocate, and unfasten the parts of said building; the new piers were constructed so as to be crooked and leaning and insufficiently supporting; the mortar in said piers was defective and of insufficient weight-bearing quality or strength; the said piers were placed on the surface of the ground, and the said street was so raised and arranged that great volumes of water were collected and thrown with great and violent force against and under said piers so that the ground was thereby softened and washed from under said piers, in consequence of which the piers sank away from the support of said center sill; and it placed four timbers, two on each side of said building, from the ground center under said building, up to the side sills of said building, so that as said building settled or weight was placed in it, or as it was moved by the wind, said pretended supports disjointed, dislocated, and tore asunder the parts of said building.

"All which said acts and negligence of the defendants concurred together, to the effect and result that, on the 3d day of November, A. D. 1911, the last north end center pier gave way, and the said defective center sill, resting thereon, broke on account of its said defectiveness, and the giving way of said pier, causing the floor of said building to fall through to the ground, ruining said house for its purpose and destroying the furniture of said church, such as benches, chairs, etc., to plaintiff's loss and damages in the sum of three thousand dollars, all of which injuries and damages were due to the said negligence of the defendants concurring and together causing the collapse and destruction of said building and its contents, in that each contributed to and with the other in co-operation caused the said common injury and damage; wherefore plaintiffs sue for said sum and all costs," etc.

The lower court sustained a demurrer to this declaration, and this appeal is prosecuted.

Affirmed as to Mississippi Lumber Company, and reversed and remanded as to city of Vicksburg.

Hudson & McKay, for appellant.

This case comes to this court on an appeal from a judgment of the circuit court of Warren county, sustained separate demurrers of the two appellees to the amended declaration of appellant in a joint action in tort, which judgment of the lower court, embodying a dismissal of the declaration, is assigned as error.

The defendant below, appellees here, demurred separately, but their grounds of demurrer are practically the same; and we shall, therefore, discuss the material grounds together, as is set out in a joint demurrer.

There are necessarily only three propositions to discuss in this case: First, does the declaration state a cause of action against the city of Vicksburg; second, does the declaration state a cause of action against the Mississippi Lumber Company; and third, does the declaration state a joint cause of action against the two appellees, or is a case of joint liability alleged.

We shall treat these propositions in the above order. First, is a cause of action in tort sufficiently stated by the declaration against the defendant city? We answer most assuredly there is.

Now let us test this full and explicit language by some of the abundant authorities. We might well content ourselves with the citation of the case of Flint & Walling Mfg. Co. v. Beckett, 167 Ind. 491, 79 N.E. 503, 12 L. R. A. (N. S.) 924, and especially the most thorough subject note on "Tort for negligent breach of contract between private parties," which note is subjoined to the cited case at page 924 et seq. of 12 L. R. A. Webb's Pollock, Torts, pp. 533-536; 4 N. M. 173, 12 P. 699; 10 C. B. 83; 11 Clark & F. 44; 18 Ala. 467; 74 Ala. 170; 106 Ill. 222, 46 Am. Rep. 688; 1 Vin. Abr., p. 276; Keilway 78, pl. 25; 65 Ala. 586; 4 Johns 84; 149 Mass. 410; 3 Abb. Pr. 136; 78 Mo. 245; 10 N.C. 246; 30 Ala. 562; 31 N. C. ; 38 Wis. 603; 4 Allen, 504; 35 N.C. 39; 71 Vermont, 410; 48 Vt. 412; 28 N. J. L. 180; 111 Ala. 401; 22 Ark. 54; 12 Howl. pr. 208; 88 P. 1017.

Does the declaration sufficiently aver a cause of action in tort against the defendant, the Mississippi Lumber Company, who furnished the material for the construction of the church? It will be observed that the declaration sets out the legal duty and obligation of the Lumber Company to furnish for incorporation into the church building sound and suitable materials for the intended purpose and use. And the declaration further alleges that the defendant negligently and knowingly furnished a weak, rotten and defective center-sill timber, which caused the fall of the church building.

We submit all of the foregoing authorities on the proposition that an action in tort is maintainable against the defendant Lumber Company rather than an action of implied assumpsit. In fact only an action in tort is possible against the defendant Lumber Company.

We submit that the declaration alleges an abundantly sufficient cause of action against the defendant Lumber Company, and in support thereof we invite the court's attention to and consideration of the following authorities. 29 Cyc. on Negligence, p. 478; 31 L. R. A. 220; 21 L. R. A. 139; 15 L. R. A. 818; 61 L. R. A. 303; 66 L. R. A. 924; 2 Mees. & W. 519; 4 Mees. & W. 337; 104 Mass. 64 & 67, 31 L. R. A. 220. Langridge v. Levy, 2 Mees. & W. 519; Wade v. Ogray, 16 So. 168; Steel Company v. Elmore, etc. Contracting Company, 175 F. 176; Lewis v. Terry, 31 L. R. A. 220.

Does the declaration sufficiently state a joint cause of action in tort against the defendants? We submit that it most abundantly does. 5 Allen (Mass.) 29; 64 N.Y. 138; 124 N.Y. 319; 75 F. 689; Am. and Eng. Ency., 10 L. R. A. 696; 106 U.S. 700, 27 L.Ed. 266; 22 L. R. A. 261; 132 State Rep. 908; 53 So. 619.

We submit that the foregoing pointed authorities established beyond all question the abundant sufficiency of the allegation of joint tort against the defendants. Compressed into a few words, it is just a case of negligently weak sill depending upon a negligently weaker pier, and their weakness concurrently give away to the injury of plaintiff. One defendant was responsible for the sill; the...