Flint & Walling Mfg. Co. v. Beckett

• Decision Date: 18 December 1906
• Docket Number: No. 20,877.,20,877.
• Citation: 167 Ind. 491,79 N.E. 503
• Parties: FLINT & WALLING MFG. CO. v. BECKETT.
• Court: Indiana Supreme Court

167 Ind. 491

79 N.E. 503

FLINT & WALLING MFG. CO.

v.BECKETT.

No. 20,877.

Supreme Court of Indiana.

Dec. 18, 1906.

Appeal from Circuit Court, Hamilton County; Ira W. Christian, Judge.

Action by Wymond J. Beckett against Flint & Walling Manufacturing Company. From a judgment for plaintiff, defendant appeals. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901. Affirmed.Chambers, Pickens, Moores & Davidson, and Shirts & Fertig, for appellant. W. S. Christian and W. J. Beckett, for appellee.

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 airshaft 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 16-foot windmill, to be erected on said airshaft, if found sufficiently strong by defendant 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 airshaft as aforesaid, said defendant had full knowledge of the material and construction of said airshaft, as aforesaid, and at the time of entering into said contract defendant agreed to examine said airshaft 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 airshaft, defendant examined said airshaft, and added or caused to be added additional braces and stays thereto, and pronounced said airshaft sufficiently strong to support said mill and tower, and then placed said mill and tower upon said airshaft. *** And plaintiff says that defendant did erect upon said barn and placed upon said airshaft, said power windmill, consisting of a wheel, tower, shafting, rods, and plates; and that said mill was erected upon said airshaft, and completed on or about the 13th day of February, 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 airshaft 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 airshaft, in this, to wit, that the defendant negligently placed the foundation planks upon which the foot of said tower rested upon cross-beams upon said airshaft, without nailing or bolting or in any way fastening said foundation boards to said cross-beams. And 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 cross-beams 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 the defendant negligently attempted to fasten said steel tower to said airshaft by means of four rods about three-fourths 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 airshaft 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 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 to properly fasten said steel tower upon said airshaft, 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 and thereby loosen said tower, so that it worked up and down, and from side to side, upon the planks or boards, as aforesaid, upon which it was placed. And that said rods, by means of said motion, wore the holes much larger in said boards 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 it 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 loosen 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; but said wind rocked said mill, and twisted the same and caused the same to break and twist said airshaft and fall about 60 feet upon the roof of said barn.” It is also alleged that the plaintiff had no notice or knowledge of the faulty, negligent, and unskillful erection of the mill, and that, “by reason of the defendant's negligence, carelessness, imprudence, and unskillfulness in erecting, constructing, and fastening said steel tower to said airshaft, 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...