Dillon v. Hunt

• Decision Date: 02 June 1891
• Citation: 16 S.W. 516,105 Mo. 154
• Parties: DILLON et al. v. HUNT.
• Court: Missouri Supreme Court

16 S.W. 516

105 Mo. 154

DILLON et al. v. HUNT.

Supreme Court of Missouri, Division No. 2.

June 2, 1891.

NEGLIGENCE — PULLING DOWN WALLS — DAMAGES.

1. The owner of a burned building was notified the day after the fire that the walls were dangerous, and must be taken down. While this was being done, the wall fell on an adjoining building, injuring the plaintiffs' goods. The owner of the burned building having died, suit was brought against his estate. Held that, for the purpose of showing that the parties engaged in taking down the walls were not employed or permitted to do the work by the owner, it was not competent for an agent employed by him to collect rents to testify that he had himself authorized no one to take down the walls, nor was it competent for an insurance agent to testify that he had advised the owner not to take down the walls at that time.

2. The damage sustained by the plaintiffs cannot be mitigated by deducting insurance money received by them on account of the injury to their goods.

Error to St. Louis circuit court; AMOS M. THAYER, Judge.

This is an action for damages caused by the negligent pulling down of a brick wall upon the building in which plaintiffs' stock of goods was stored in the city of St. Louis on November 17, 1877. The petition in this case was passed upon by this court in this cause in 82 Mo. 150, and held good on demurrer. The answer is as follows: "Defendant, for answer to the petition of Thomas E. Dillon, Martha Jessel, and Joseph Jessel, plaintiffs — First. Denies that Joseph Jessel, as husband of said Martha Jessel, is a necessary or proper party to this action, and says objection to him as a party herein will at all times be made. Second. Denies that said Martha Jessel and said Thomas E. Dillon were partners, as alleged, and denies said alleged firm or said plaintiffs, or either of them, was or were owners of or in possession of any of the goods, wares, or chattels in the petition mentioned, at the place mentioned, or engaged in the business alleged, or that said chattels were of the value alleged, or of any value. Third. Defendant admits that Charles L. Hunt was the owner of the building and lot in the petition described, but denies the same was adjoining any store-room or building occupied by plaintiffs. Fourth. Defendant admits a fire, which defendant says was accidental, and occurred in his absence, and was beyond control before it was discovered, did occur, and his building was in great part destroyed thereby, but defendant denies defendant knew, as alleged, said walls and chimneys left standing were in unsafe, insecure, and dangerous condition, or a nuisance, or liable to fall, as alleged, and denies that it was defendant's duty to abate the same. Fifth. Defendant denies he was in possession of said premises, walls, or chimneys, as alleged, or had full or any control or direction of the same, and he denies he allowed or permitted, either knowingly, negligently, or in any way, certain or any persons or person to enter upon said premises for the purpose alleged, or any purpose, or that their action inured to defendant's benefit. Sixth. Defendant denies that any person or persons negligently or unskillfully pushed or threw or caused said walls, or portions thereof, to fall, as alleged, or that the same did so fall, or that said house was crushed and destroyed, or the chattels contained therein were covered with the débris. Seventh. Defendant denies he either knew or had good reason to know that said person or any persons either undertook to tear down said walls, or intended to adopt or did adopt the method alleged in the petition, or that defendant neglected his duty as alleged, or permitted the work to be proceeded with as alleged. Eighth. Defendant denies any portions of said goods were mutilated or otherwise injured either in the sum as alleged or any other sum, or that fixtures were damaged as alleged or in sum alleged, or that said firm expended the sum alleged, or any sum, for clearing away débris, or that said firm had a lease as alleged, or had paid rental as alleged, or lost the use of said store-room, or that the pretended unexpired term of said lease was of the value alleged, or any value, or that said firm expended the sum alleged, or any sum, in recovering, handling, preserving, or removing said chattels, or that the plaintiffs were damaged in the sum of three thousand dollars, or any other sum, as alleged. And defendant asks to be hence dismissed with his costs."

The following is a concise statement of the facts disclosed by the record which raise the questions now presented to this court for determination, to wit: The plaintiffs as copartners occupied, with a stock of general merchandise, the first floor of a three-story building numbered 110 North Fourth street, in the city of St. Louis, and the defendant's testator, Charles L. Hunt, owned a five-story building immediately adjoining it on the south. On the night of the 13th day of November, 1877, the Hunt building caught fire, and all the interior combustible portions of it burned, which left the north wall and a partition wall running east and west standing, but in a very dangerous condition, and liable at any time to fall over upon the building occupied by plaintiffs. Plaintiffs' stock of goods was considerably damaged by the fire and water on the night of November 13th. A day or two after the fire, chief of the fire department Sexton, notified Hunt that the standing walls were dangerous, and that he would have to remove them. After this notice, Hunt knowingly permitted others to go upon his premises for the purpose of taking the walls down, and while these persons were so engaged, on the 17th of November, they negligently threw portions of the north wall mentioned above over upon the building occupied by plaintiffs, by means whereof the latter building was crushed, and the plaintiffs' stock of goods damaged still more. This action is for the recovery of the latter damage. Plaintiffs had several policies under which their stock of goods was insured against damage by fire and water. After the fire on the 13th, and before the fall of the wall on the 17th, the loss under these policies, excepting one, resulting from fire, were adjusted, and the policies canceled; and after the fall of the wall, and before the institution of the suit, plaintiffs settled with the company which issued the remaining policy for a portion of the losses occurring thereunder. There was evidence to sustain the allegations of the petition. Mr. Hunt died after the suit was brought. One of the principal issues at the trial was whether or not Hunt authorized or permitted the parties who negligently threw the walls down to go upon his premises for the purpose of taking them down; and during the progress of the trial Fred C. Zeiberg was permitted to testify, over the objections and...