Long v. Magnolia Hotel Co.

• Decision Date: 04 May 1959
• Docket Number: No. 41087,41087
• Citation: 111 So.2d 645,236 Miss. 655
• Parties: Mrs. Amelia LONG v. MAGNOLIA HOTEL CO. et al.
• Court: Mississippi Supreme Court

Page 645

111 So.2d 645

236 Miss. 655

Mrs. Amelia LONG v. MAGNOLIA HOTEL CO. et al.

No. 41087.

Supreme Court of Mississippi.

May 4, 1959.

Brunini, Everett, Grantham & Quin, Vicksburg, for appellant.

Vollor & Thames, Teller, Biedenharn & Rogers, Vicksburg, for appellees.

PER CURIAM.

Mrs. Amelia Long sued the Magnolia Hotel Company, owner of the Vicksburg Hotel at Vicksburg, Mississippi, and M. T. Reed Construction Company for negligently pushing or throwing brick and stone from the tornado damaged wall of the eleventh floor of the hotel building onto her adjacent one-story frame structure which was immediately to the east of the hotel building and was prior to the tornado used as a restaurant. The action of the defendants complained of occurred following the devastating tornado which struck the City of Vicksburg in the late afternoon of Saturday, December 5, 1953. The tornado had done considerable damage both to the hotel and to the plaintiff's restaurant building. There were left hanging in a precarious and dangerous position, likely to fall at any time, the loose bricks around an eleventh floor window of the hotel, which were leaning toward the plaintiff's one-story restaurant building on the east side of the hotel wall.

The National Guard and the Adjustant General (Wilson) were on hand to protect the public safety and to do, or have done, whatever things were necessary in that behalf.

It is undisputed in the record that General Wilson ordered that the president of the hotel company have the loose and leaning brick in question removed immediately. Thereupon the latter contacted M. T. Reed, president of the M. T. Reed Construction Company, one of the outstanding construction firms in the state, and arranged with Mr. Reed to have the dangerous condition remedied. Naturally the hotel company would leave to the determination of this experienced construction firm the matter as to what method should be employed in remedying the dangerous situation hereinbefore referred to. Nevertheless, the M. T. Reed Construction Company was acting as the agent, at the request of, and on behalf of the hotel company in getting the loose brick down from the tornado damaged wall of the hotel pursuant to the orders of the military authorities.

On the first trial of this suit for damages the trial judge gave a directed verdict for the defendants on the ground that they were acting in an emergency. We reversed the case on the first appeal, Long v. Magnolia Hotel Co., 227 Miss. 625, 86 So.2d 493, 496, saying, among other things: 'In the case that we have here the hotel company and the contractor owed a duty to Mrs. Long to exercise reasonable care to avoid injury to Mrs. Long's property when they undertook to remove the overhanging brick; and the fact that Mrs. Long's building had already been damaged by the tornado did not affect their liability for additional damage caused by their negligence. Whether they were guilty of negligence under the facts disclosed by the record was a question for the jury.'

Upon the trial on remand there was a verdict in favor of the plaintiff for the sum of $19,000. Thereupon, and in term time, the defendants made a motion for a new trial on the following grounds: '1st: That the verdict is excessive, evincing passion and prejudice on the part of the jury; 2nd: That the verdict is contrary to the overwhelming weight of the evidence; and 3rd: * * * The court erred in refusing instructions requested by defendants and granting instructions requested by plaintiff.'

This motion was filed on November 14, 1956, before the adjournment of the October term of court. Thereupon the trial judge entered an order taking the same under advisement, for decision to be rendered thereon in vacation. No action was taken by the trial judge on the motion during the period which intervened between the adjournment of the term of court at which the $19,000 judgment was rendered and the beginning of the next term of the court in December 1956. After the completion of the December 1956 term of the court, and on January 17, 1957, the trial judge addressed a letter to the respective firms of attorneys representing the parties, in which he stated, among other things, 'I do not feel that the case should be tried again if a judgment fair to all can be reached. So, I am going to ask the plaintiff to remit part of the amount of the verdict, which I think is excessive. Mrs. Long stated, in effect, that her building was damaged in the amount of $7,000.00.' In stating that Mrs. Long had testified in effect that her building was damaged in the amount of $7,000, the trial judge could have been referring to her testimony where she was asked:

'Q. Now, Mrs. Long, as the owner of this property, please state to us what you consider the fair market value of the entire property, building and lot, immediately prior to the tornado? A. I would say forty-thousand dollars ($40,000.00).

'Q. Now, as the owner of that property, please state what you consider to be the fair market value of the entire property, building and lot, after the tornado and before the repairs to the hotel were started. A. Thirty-seven thousand dollars ($37,000.00).

'Q. Now, as the owner of that property, what did you consider to be the fair market value of the entire property, building and lot, after the brick had fallen on it as a result of the repairs to the Hotel? A. About Thirty thousand dollars ($30,000.00).'

The trial judge further stated in his letter 'I think Mr. Hennessey's testimony adds up to practically the same.' He was comparing the testimony of Mr. Hennessey with that of the plaintiff. Mr. Hennessey, a witness for the plaintiff, was a real estate expert and appraiser, and he had been asked the following questions and gave the following answers: 'Q. Now, what in your opinion was the fair market value of the entire property, land and building, as of December 4, 1953, immediately prior to the tornado? A. $28,880.00.' And he further testified 'Q. What, in your opinion, was the fair market value of the entire property--land and building--when you inspected it in August 1954? A. Well, it would just simply be the value of the land, sir. Q. And what was that? A. Eighteen thousand dollars ($18,000.00).' No one claimed that the land was damaged by either the tornado or the falling brick. The effect of his testimony is, therefore, that the damage caused to the building both by the tornado and the falling brick was $10,880, and the undisputed testimony of M. T. Reed is that the tornado had caused some of the brick and debris to fall on the plaintiff's building from the hotel wall before he went up to remove the leaning brick.

There was proof that the plaintiff's building was constructed for her in 1935 and that she began her occupancy thereof during the year 1936. Since, according to the testimony of the plaintiff's witness Raymond Birchett, her building could have been reconstructed as it was and of the same materials for $17,291.48, we do not think that she would have been entitled to the value of a new brick building erected in conformity with the city's new building code at the cost of $23,669. One court decision from Wisconsin and one from West Virginia which have been called to our attention hold the contrary. These two cases are not shown to be in accord with the majority rule. In other words, we think that the defendants would not be liable to the plaintiff for any damage in excess of the amount that they actually damaged her then existing building by the throwing of the bricks and stone onto the roof thereof, as damages to the building itself. It has always been the rule in this state that in a tort action to recover damages done to the property the amount recoverable is the aggregate of the damages that resulted from the tort itself, except in a proper case for punitive damages, and we do not think that this is such a case.

In the case of D. L. Fair Lumber Co. v. Weems, 196 Miss. 201, 16 So.2d 770, 151 A.L.R. 631, the agent or employees of the D. L. Fair Lumber Company were not attempting to remedy a dangerous situation in an emergency nor acting under military orders when they cut the timber down on and destroyed the fence of Mr. Weems. We do not think that case is applicable or controlling here.

We are of the opinion that the plaintiff is entitled to recover as damages to her personal property for the various items listed in her bill of particulars to the extent that she is able to show by a preponderance of the evidence that they were actually damaged by the action of the defendants rather than by the tornado.

Under the decision in the case of Union Motor Car Co. v. Cartledge, 133 Miss. 318, 97 So. 801, we are of the opinion that an order which undertook to sustain the motion for a new trial in vacation after a term of the court had intervened without another order having been entered on the minutes of the intervening term further continuing the motion for a new trial to be decided in vacation, was a nullity, but a majority of the Judges are of the opinion that the effect of this action left the motion for a new trial undisposed of and that the trial judge had jurisdiction and authority to render a further order at the January 1957 term of the court disposing of the motion for a new trial, and that he was justified in then sustaining the motion for a new trial on the grounds stated therein, as hereinbefore set forth in paragraph 5.

As to the verdict rendered by the jury after the motion for a new trial was sustained, and which verdict was for only $5,000, we are of the opinion that that verdict was inadequate as compensation to the plaintiff for the damages shown by the competent evidence. And under the cases of Gordon v. Lee, 208 Miss. 21, 43 So.2d 665, Swartzfager v. Southern Bell Tel. & Tel. Co., Miss., 110 So.2d 380, and the case of Green v. Hatcher, Miss., 105 So.2d 624 (not yet reported in Miss. Reports), we feel justified in reversing...