Lancaster v. Connecticut Mut. Life Ins. Co.

• Citation: 92 Mo. 460,5 S.W. 23
• Parties: LANCASTER, Trustee, etc., v. CONNECTICUT MUT. LIFE INS. CO.
• Decision Date: 20 June 1887
• Court: United States State Supreme Court of Missouri

5 S.W. 23

92 Mo. 460

LANCASTER, Trustee, etc., v. CONNECTICUT MUT. LIFE INS. CO.

Supreme Court of Missouri.

June 20, 1887.

1. NEGLIGENCE — NEGLIGENT BUILDING.

If, by reason of defendant's building operations, plaintiff's adjoining property is injured, as, for example, by the insertion of a girder into an old and weak party-wall, defendant, although he has intrusted the work to independent contractors, cannot escape liability if the injury was occasioned, not by poor workmanship or materials, but by the use of defective plans and specifications.

2. SAME.

And where the specifications deal largely with details, and provide, inter alia, that the old work shall be joined to the new "in the very best manner and anchored where directed," but say nothing with respect to a support for the girder, defendant cannot throw the responsibility on the contractors, or contend that the words "anchored where directed" mean where directed by the contractors, and not where directed by himself.

3. SAME.

By reason of the insertion of a girder in a party-wall between plaintiff's premises and defendant's, the wall fell, as did the wall erected by defendant and thus supported. The party-wall was known by defendant to be old and weak. Had the girder rested on a pillar, the accident would not have happened. Plaintiff's petition concluded with the statement that defendant's wall fell upon plaintiff's house, crushing it, etc.; and an instruction, given at defendant's request, required a finding for plaintiff to be based on proof that defendant's wall fell before the party-wall. Held that, if the party-wall yielded to the weight upon it, thus causing both walls to fall, it was immaterial that the evidence showed that the party-wall came to the ground first, and that this afforded no reason for disturbing a verdict for plaintiff.

4. ASSIGNMENT — CHOSE IN ACTION — INJURY TO REALTY — SALE OF REALTY.

After the accrual of a right of action to a trustee for an injury to certain real property, the trustee sold the property. He did not, however, assign the damages. Held, that his right to maintain the action was not affected by the sale of the property.

5. TRIAL — VERDICT ON DIFFERENT COUNTS.

Plaintiff stated the same cause of action in two separate counts. The jury returned a verdict for plaintiff on each count, assessing damages on the first count at $1, and on the second count at $4,900. Held, that the finding on the first count was practically for defendant, and that, on the entry of plaintiff's remittitur of one dollar, he was entitled to judgment.

Appeal from St. Louis court of appeals.

Broadhead & Haeussler, for respondent. Dyer, Lee & Ellis, for appellant.

BLACK, J.

The plaintiff and the defendant owned adjoining lots fronting on Fourth street, in the city of St. Louis, which extend back to an alley. There was a five-story brick building upon each lot, the wall between them being a party-wall. The first count of the petition in substance states that in September, 1881, the defendant erected upon its property a brick wall so as to abut against the party-wall; that the same was carried to a great height; that the defendant negligently caused the wall to be erected in such an insecure and defective manner, and with such insufficient foundation and supports, that the supports gave way, and the wall fell upon plaintiff's building, crushing it, to the damage, etc. The second count states that the defendant erected the new wall in such a manner as to bear with great weight upon a girder which was negligently inserted into the party-wall, without providing a sufficient foundation or supports therefor; and that defendant negligently omitted to employ competent and skilled men to superintend and construct the wall and other alterations of the old building. In other respects this count is the same as the first.

The defendant's property is known as the "Old St. Nicholas Hotel," and the plaintiff's, which is to the south of the other, is known as the "Nelson House." Plaintiff's building extended from the street on the east to the alley on the west, and the St. Nicholas Hotel building extended west, to within some 35 feet of the alley. It is shown that the greater portion of the party-wall between the St. Nicholas and the alley was in a bad condition, was cracked, and the bricks in places were well rotted from heat and moisture from a laundry attached to the St. Nicholas. The condition of this portion of the party-wall was well known to both parties. The defendant determined to convert the St. Nicholas Hotel into store-rooms, and to that end entered into a written contract, plans, and specifications with Messrs. Barnes & Morrison, contractors and builders. It appears that the plans and specifications were prepared by the contractors; but it is equally clear that they were approved by the defendant at the home office, and were approved and signed by the defendant's agents, Messrs. Budd & Wade, at St. Louis. In the execution of the contract according to the plans, it became necessary for the contractors to remove the rear wall of the St. Nicholas Hotel, and place it some six or eight feet towards the alley, — 25 feet east of the alley. This new wall rested upon a girder, and extended to a height of four stairs above the ceiling to the first story. The north end of the girder was supported by the defendant's north wall, and the south end was inserted in the party-wall. The girder was of two pieces joined at the center, and there supported by an iron column. After the new wall had been built, or nearly completed, it and the rear wall of the plaintiff's house fell down.

There is much evidence to the effect that the party-wall, at the place where the new one joined it, was weak, to the knowledge of the defendant's agents, and that the only safe way to build the new wall was either to place a pillar or abutment next to the party-wall, and let the girder rest on that, or to firmly anchor both ends of the new wall into the side walls, and that neither was done. There is evidence to the effect that by building an abutment, or placing a pillar of iron at the party-wall, there would have been no danger. On the other hand, there is evidence tending to show that a pillar or abutment was not necessary; that the party-wall, at the point of juncture, was sound and safe; that the party-wall next to the alley fell from its inherent weakness, dragging with it the new wall, and other portions of the party-wall, to a point eight or ten feet beyond the place where the two walls joined.

The...