Dillon v. Hunt
Decision Date | 30 April 1884 |
Citation | 82 Mo. 150 |
Parties | DILLON et al. v. HUNT, Appellant. |
Court | Missouri Supreme Court |
Appeal from St. Louis Court of Appeals.
AFFIRMED.
Noble & Orrick for appellant.
1. The rule of construction applicable to this petition is, that its averments are to be taken most strongly against the plaintiffs, and, in matters of doubt, they are to be resolved in favor of the defendant. 2. The petition does not aver that the parties causing the injury to the plaintiffs were the servants of the defendant, but, on the contrary, that they were acting for themselves, and that the defendant was not their superior. 3. To have made the petition a good petition, it should have shown distinctly, by direct averments, that the persons who caused the injury were acting under the employment of the defendant. This it not only does not do, but avers in effect the contrary. 4. The case as stated falls within the rule that the owner is not responsible for damages done on or by use of real estate, when the relation of master and servant does not exist between him and the person causing the injury. Berry v. St. Louis, 17 Mo. 125; Morgan v. Bowman, 22 Mo. 546; Clark v. Railroad Co., 36 Mo. 228; Wharton on Neg., § 818; Thompson on Neg., §§ 914, 915. 5. The petition exhibits on its face a case of negligence by the plaintiffs, and they cannot recover in any event. Crawshaw v. Sumner, 56 Mo. 517.
C. P. & J. D. Jonhnson for respondents.
The petition, in substance, charges that the appellant was the owner and in possession of certain fixed property in the city of St. Louis, and that he knowingly permitted others, not his contractors, to use it in a manner to work an injury to the adjoining property of respondent. Respondents contend that, under the facts stated in the petition, the law made it the duty of the appellant to so use and manage the property in question that injury would not result to the rights or property of others, and that, failing in this duty, the law holds him accountable for the injuries resulting therefrom. See Althorf v. Wolfe, 22 N. Y. 359; Vincett v. Cook, 11 N. Y. Sup. Ct. (4 Hun.) 318; Benson v. Saurez, 43 Barb. 408; Gorham v. Gross, 125 Mass. 237, and cases cited; Dorritz v. Rapp, 72 N. Y. 307; 1 Thompson on Neg., p. 278; Robbins v. Chicago, 5 Wall. 667, 678; Chicago v. Robbins, 2 Black. 418, 428; Tarry v. Ashton, 1 Q. B. Div. 319; Pickard v. Smith, 10 C. B. (N. S.) 472; Fletcher v. Ryland, L. R. 1 Ex. 280; Hole v. Sittingbourne, 6 H. & N. 488, 500; Butler v. Hunter, 7 H. & N. 826, 833; Chauntler v. Robinson, 4 Exch. 163, 170; Bower v. Peatec, 1 Q. B. Div. 321; Charter of the City of St. Louis, Appendix, 2; R. S. of Mo., p. 1588, § 26 subd. 12; Rev. Ordinances of the City of St. Louis, 1881, p. 399, § 32. The respondents' right of action is based upon the maxim of sic utere tuo ut alienum non laedas. As it does not appear from the petition that the parties who tore down appellant's walls were his contractors for doing the work, the rule of respondant superior is not involved in the consideration of the case. Althorf. v. Wolfe, 22 N. Y. 359; Gray v. Boston, 114 Mass. 153; Vincett v. Cook, 11 N. Y. Sup. Ct. (4 Hun.) 318; Benson v. Saurez, 43 Barb. 408; Robbins v. Chicago, 5 Wall. 667; Gorham v. Gross, 125 Mass. 237. The charter and ordinances of the city of St. Louis also imposed on appellant the duty of removing the walls from the premises without injury to others. City Charter, 2 R. S. 1879, p. 1588, § 26; Rev. Ordinances, 1881, p. 399, § 32; Dorritz v. Rapp, 72 N. Y. 307.
Plaintiff had a store on Fourth street in St. Louis, and the defendant owned the adjoining house which was accidentally burned. Plaintiffs sued defendant, and after making other necessary averments proceed as follows:
And then closing with an appropriate statement of, and prayer for damages.
Defendant demurred, on the ground that the petition did not state facts sufficient to constitute a cause of action, which was sustained.
The plaintiff declining to plead further there was judgment on the demurrer for the defendant, whereupon the plaintiff appealed to the St. Louis court of appeals. That court reversed the judgment of the circuit court and the defendant is the appellant here.
The sole question is the sufficiency of the petition. The cause of action, if stated at all, must be substantially in that clause which says “said defendant allowed and permitted certain...
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