Flint & Walling Manufacturing Company v. Beckett

Decision Date18 December 1906
Docket Number20,877
Citation79 N.E. 503,167 Ind. 491
CourtIndiana Supreme Court
PartiesFlint & Walling Manufacturing Company v. Beckett

From Hamilton Circuit Court; Ira W. Christian, Judge.

Action by Wymond J. Beckett against the Flint & Walling Manufacturing Company. From a judgment on a verdict for plaintiff for $ 1,100, defendant appeals. Transferred from Appellate Court under § 1337u Burns 1901, Acts 1901, p 590.

Affirmed.

Chambers Pickens, Moores & Davidson, Shirts & Fertig and Allen P. Vestal, for appellants.

William S. Christian and Wymond J. Beckett, in pro. per., for appellee.

OPINION

Gillett, J.

Appellee brought this action to recover damages for an injury to his barn and the contents thereof, owing to the fact that appellant constructed a windmill thereon in such an insufficient manner that it fell. As a number of the questions which this appeal involves depend upon the construction of the complaint, as to whether it is in tort or contract, our first undertaking shall be to state, so far as essential to an understanding of the question of construction, the substance of said complaint. The following facts are pleaded: Defendant is, and was on December 12, 1902, a corporation engaged in the manufacture, construction, and erection of windmills. Plaintiff was on said date the owner of a round barn, 100 feet in diameter and 34 feet high, measured at the eaves, with a conical roof, rising to a height of 70 feet. There was an air-shaft or duct in the center of said barn, extending from the bottom thereof to, and projecting through, the roof. The shaft was between four and five feet square, and was constructed of heavy timbers, braced at intervals with boards. On the day aforesaid, plaintiff contracted with defendant for the purchase and erection of a sixteen-foot windmill, to be erected on said air-shaft, if found sufficiently strong to support said mill. The contract was in writing, and is set out in the body of the complaint. By the terms of this contract appellant agreed to erect said mill on said barn, furnishing all labor and tools and necessary materials, except timber. The contract contained the following further provisions:

"The above outfit to be erected in a first-class manner, and will run and operate the machinery in an ordinary wind, and grind reasonably fast. All machinery set in proper position and started to work in good order. * * * The Star mill is constructed of good material, in a first-class manner, to withstand any storms that do not damage substantial buildings and other windmills in the vicinity."

At this point we quote certain of the allegations of said complaint: "And plaintiff says that at the time he entered into the agreement and contract for the construction and erection of a windmill upon said barn, the construction of said barn, and the uses for and to which it was applied and used as aforesaid, were made known to the defendant herein; and that at said time the defendant had full knowledge of the construction of said barn, and the purposes for which it was to be used as herein alleged, and also, at the time of entering into said contract and the erection of said windmill upon said air-shaft as aforesaid, said defendant had full knowledge of the material and construction of said air-shaft, as aforesaid, and at the time of entering into said contract defendant agreed to examine said air-shaft and determine for itself its strength and sufficiency to hold said mill, and agreed to make or cause said shaft to be made sufficiently strong to hold said mill. And before defendant placed said windmill and tower upon said air-shaft, defendant examined said air-shaft and added or caused to be added additional braces and stays thereto, and pronounced said air-shaft sufficiently strong to support said mill and tower, and then placed said mill and tower upon said air-shaft. * * * And plaintiff says that defendant did erect upon said barn and placed upon said air-shaft said power windmill, consisting of a wheel, tower, shafting, rods, and plates; and that said mill was erected upon said air-shaft, and completed on or about February 13, 1903, and plaintiff paid the agreed and stipulated price therefor." It is alleged that the windmill and the steel tower or frame weighed about 2,000 pounds. The complaint contains the following specifications of negligence: "And plaintiff says that defendant negligently constructed and erected said windmill upon said air-shaft as a tower or foundation for the same, without making or causing said shaft to be made sufficiently strong to hold the same, and negligently failed to fasten said tower securely to said air-shaft, in this, to wit, that the defendant negligently placed the foundation planks upon which the foot of said tower rested upon crossbeams upon said air-shaft, without nailing, bolting, or in any way fastening said foundation boards to said crossbeams; that defendant negligently failed and neglected to put lag-screws or bolts in the foot or base-plate of said windmill tower, as it was its duty so to do, and negligently failed and neglected to fasten said boards, upon which rested the foot of said tower as aforesaid, to said crossbeams upon which they rested as aforesaid, and negligently failed to nail said boards or bolt said boards together, and negligently failed to put any bolts or lag-screws through the base-plate which constituted the foot of said steel tower, and negligently placed said base-plate on boards that were defective and wind-shaken, but negligently attempted to fasten said steel tower to said air-shaft by means of four rods about three-quarters of an inch in diameter and about four or five feet in length; that the defendant negligently put one end of said bolt through the foot or base-plate of said steel tower, and negligently bent the other end of said rod so that it passed through the vertical post of said air-shaft at right angles to the same; that defendant negligently fastened said tower upon which said windmill rested by means of said bent rods, and negligently failed to secure and fasten said steel tower by any other means or in any other way, and negligently used rods that were smaller than the hole in said base-plate, thereby allowing said base-plate to move about."

The complaint further alleges "that by reason of defendant's failure properly to fasten said steel tower upon said air-shaft as aforesaid, and without any fault or negligence on the part of this plaintiff, the wind bearing against said wheel of said mill caused said bent rods to straighten out, thereby loosening said tower, so that it worked up and down and from side to side upon the planks or boards upon which it was placed; that said rods, by means of said motion, wore the holes in said boards much larger than the size of said rod, and that, by continual wearing and motion, said tower became loose upon said boards, and said rods became straightened out to such an extent that they permitted the wind to weave said mill and tower about, and permitted said mill and tower to move about and wear said boards and stretch said rods and straighten the same, as aforesaid, and thereby loosened said mill to such an extent that a wind of ordinary velocity, and only sufficient to run said mill and cause the same to work and grind, as it was intended so to do, and not sufficient wind to destroy other substantial buildings in the neighborhood, and not sufficient wind to destroy and blow down other windmills in the same neighborhood, rocked said mill and twisted the same and caused the same to break and twist said air-shaft and fall about sixty feet upon the roof of said barn." It is also alleged that the plaintiff had no notice or knowledge of the faulty, negligent, and unskilful erection of the mill, and that "by reason of the defendant's negligence, carelessness, imprudence, and unskilfulness in erecting, constructing, and fastening said steel tower to said air-shaft, the plaintiff has suffered, without his fault or negligence, great damages." The complaint then specifies various items of damage, and to these averments is added the following: "Total damage to this plaintiff by reason of defendant's negligence and failure of duty as herein alleged, $ 2,778.64."

The leading contention of appellant's counsel is that the duty it owed to appellee arose out of contract, and that, as appellant was not engaged in a public employment, its obligation could only be enforced by an action on the contract for a breach thereof. The latter insistence cannot be upheld. It is, of course, true that it is not every breach of contract which can be counted on as a tort, and it may also be granted that if the making of a contract does not bring the parties into such a relation that a common-law obligation exists, no action can be maintained in tort for an omission properly to perform the undertaking. It by no means follows, however, that this common-law obligation may not have its inception in contract. If a defendant may be held liable for the neglect of a duty imposed on him, independently of any contract, by operation of law, a fortiori ought he to be liable where he has come under an obligation to use care as the result of an undertaking founded on a consideration.

Where the duty has its roots in contract, the undertaking to observe due care may be implied from the relationship, and should it be the fact that a breach of the agreement also constitutes such a failure to exercise care as amounts to a tort, the plaintiff may elect, as the common-law authorities have it, to sue in case or in assumpsit. It is broadly stated in 1 Comyns' Digest, Action on the Case for Negligence, A 4, p. 418, that "if a man neglect to do that, which he has undertaken to do, an action upon the case lies. * * *...

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