Lottman v. Barnett

• Decision Date: 31 January 1876
• Citation: 62 Mo. 159
• Parties: FELICITA LOTTMAN, Respondent v. GEORGE I. BARNETT, Appellant.
• Court: Missouri Supreme Court

62 Mo. 159

FELICITA LOTTMAN, Respondent

v.GEORGE I. BARNETT, Appellant.

Supreme Court of Missouri.

January Term, 1876.

Appeal from St. Louis Circuit Court.

Thomas T. Gantt, with S. T. Glover, for Appellant.

I. The demurrer to the plea of limitations was improperly sustained. The amended petition set up a new cause of action founded upon a different section of the statute from that on which the original petition was based, and requiring different evidence in its support. The charge, the evidence and the penalty were different in each. (Buel vs. St. Louis Transfer Co., 45 Mo., 562-63; Dudley vs. Price, 10 B. Mon., 88; Hyatt vs. Bank of Ky., 8 Bush., 192-200; Roe vs. Doe, 30 Ga., 873-875; King and Wife vs. Avery, 37 Ala., 169; Christman vs. Mitchell, 3 Ired. Ch., 543; Holman vs. Trout, 1 McLean, 410.)

II. The instructions given by the court industriously ignored the difference between the liability of a contractor to those with whom he has contracted, and to those between whom and himself there is no such connection. (Shearm. & Redf. Negl., §§ 111-115; Brown vs. Lent, 20 Vt., 529; Henshaw vs. Noble, 7 Ohio St., 226; Rapson vs. Cubitt, 9 Mees. & Wels., 710 [Eng. Exch. Rep).

III. The instructions given by the court erroneously invited the jury to treat what was at most a secondary cause, as a “direct and immediate cause” of the catastrophe; and this error was committed not only against the weight of, but in violent contradiction to, all the evidence in the cause, and this is error. (Harper vs. Ind. & St. L. R. R. Co., 44 Mo., 488; Franz vs. Hilterbrand, 45 Mo., 123; Dedo vs. White, 50 Mo., 241.)

Stewart & Wieling, for Respondent.

In the amended petition the same cause of action, in substance, is again stated in a manner more in accordance with the facts, and it was properly allowed, (Thompson vs. Mosely, 29 Mo., 477) and related back to the original petition. (Buel vs. Transfer Co., 45 Mo., 562.)

The gist of the action was the killing the plaintiff's husband by the act or negligence of the defendant, and the same charge against the defendant is contained in both the original and amended petition. In the latter the means of the killing and the immediate connection of the defendant therewith, are more specifically stated. (Railroad Co. v. Hendricks, 41 Ind., 48; Thompson vs. Mosely, 29 Mo. 477; Buel vs. Transfer Co., 45 Mo., 562; Boys vs. Anall, 5 Bing., 333; LeBanco vs. Hamburger, 2 H. & C., 330; Carne vs. Malin, 6 Eng. L. & E., 568; Davenport vs. Holland, 2 Cush., 1; Tobias vs. Harland, 1 Wend., 93; Davis vs. Hill, 41 N. H., 329; Ten Eyck vs. Canal Co., 4 Har. [N. J.] 5; Ward vs. Pine, 50 Mo., 38; Mann vs. Schroer, 50 Mo., 306; Harkness vs. Julian, 53 Mo., 238; Bearecroft vs. The Hundred, S. & C., 3 Lev., 347; Marlborough vs. Wildman, 2 Strau., 890; Lane vs. R. R. Co., 5 Jones [N. C. Law], 25; N. A. & S. R. R. Co. vs. Laiman, 8 Ind., 212; Sherman vs. Bridge Co., 11 Mass., 338; Horton vs. Inhabitants, &c., 1 Cromp. & Mees., 772; Tayon vs. Ladew, 33 Mo., 205.)

The defendant is charged with having caused the injury by his negligence, unskillfulness and carelessness. This is the language used in the instruction in Harriman vs. Stowe, and it imputes positive misfeasance. (Bouv. Law Dic., def. Misfeasance; Whart. Law Dic., def. Misfeasance; Blythe vs. Waterworks, 39 Eng. L. & Eq., 506-8; New World vs. King, 16 How. [U. S.], 469; Grant vs. Mosely, 29 Ala., 302.)

J. A. Beal, for Respondent.

The builder in law is bound to provide proper materials and safe construction, so as not to expose employees to dangers and injuries. (Connor vs. Chicago, R. I. & P. R. R. Co., 59 Mo., 285; Horner, Adm'r, vs. Nicholson, 56 Mo., 220; Garetzen vs. Pac. R. R., 50 Mo., 104; 36 Mo., 13; Harriman vs. Stowe, 57 Mo., 93; Shearm. & Redf. Negl., §§ 89, 92, 93; 10 Gray, 274; Cozzen vs. Taylor, 8 N. Y. 175; Keegan vs. Western R. Co., 10 Jur. [N. S.], 1235; Davis vs. England, 41 Barb., 366; Conolly vs. Poillon, 59 Penn. St., 239.)

Defendant had the control, direction or advice in raising of the columns, and was therefore responsible to plaintiff for the death of her husband. (Horner, Adm'r, vs. Nicholson, 56 Mo., 220; Shearm. & Redf. Negl., § 73 and notes.)

Defendant, as architect, is liable for negligence in performance of his duties. (Harriman vs. Stowe, supra.)

NAPTON, Judge, delivered the opinion of the court.

At the April term, 1870, of the St. Louis circuit court, a petition was filed by the plaintiff against eight defendants, of whom the present defendant was one, stating that she was the widow of F. A. Lottman, and that her husband was a carpenter, engaged in the construction of the building on the corner of Fifth and Olive, the property of the defendants, and while so engaged, was killed by the falling of the southern portion of said building; that her husband's death was occasioned by the carelessness, negligence and default of defendants and their servants in the construction of said building, and a judgment is asked for $5,000 under the 3d section of the act concerning damages.

In April, 1872, the plaintiff dismissed as to all the defendants except Barnett, and by leave filed an amended petition. This petition contained the same allegation as the first, as to the death of plaintiff's husband, but alleged that defendant, at the time of the accident, and for a long time previous thereto, was the superintending architect in charge of said building, and as such, had been entrusted with the business of constructing and completing the same, and had the entire superintendence and management of the work and materials on and about the same, and that the falling of the southern portion of said building (by which plaintiff's husband was killed) was caused by the carelessness, negligence and unskillfulness of said defendant, as such architect, in the construction of said building, and in his direction and management of the work on the same, and his use of improper and unsafe materials therefor.

The answer denied these allegations, and pleaded the statute of limitations of one year as a bar to this last petition. A demurrer was filed to the last part of the answer, which was sustained.

The bill of exceptions contains the facts agreed on at the trial. The killing of plaintiff's husband, as stated in the complaint, was admitted. Evidence was given by the plaintiff tending to show that the iron tubular girders, resting on cast iron pillars, which supported the walls of the building which fell, were constructed in a manner less strong and less calculated to support weight than had been, prior to that time, in use in England, and since that time, in St. Louis. It was admitted that the proprietors had employed defendant to design the building, and as a general superintendent in its construction.

The building fell at or before 8 o'clook in the morning of November 19th, 1869. An attempt had been made that morning to raise the western pillar, supporting the girder on which the wall rested. The most eastern pillar supporting the girder on which the wall rested, had been raised successfully on the 17th of November. Defendant was not at the building on the morning when it fell, but was still at his house and at breakfast when it occurred. The 18th was Thanksgiving day. The working of the jackscrews caused the fall of the building at that time. Plaintiff's husband was a carpenter and employed at work on the building, and with others was called down into the cellar on the morning of the 19th of November, by Bashore, who had charge of the working of the jackscrews.

There was evidence tending to show that the fall of the building was due to the imperfect construction of the girders employed in building it. There was evidence tending to show that the immediate cause of the fall was the working of the jackscrew; and that but for the working of the jackscrew the building would not have fallen at all. There was evidence to show that the raising of the building by the means employed was a hazardous job, but might have been safely accomplished if those in charge of it had taken due precautions; that the fall of the building was caused by injudicious working of the jackscrews, and that Bashore was negligent and remiss on that occasion.

There was also evidence tending to show that the tubular iron girders and the columns used in the construction of the building, were constructed upon the plan approved and adopted by defendant, as the architect and superintendent of the building, and that the girders were not properly constructed, and were not sufficiently strong for the purposes for which they were employed; that they were of cheap construction.

It was admitted that the columns upon which the broken girders rested, stood upon a foundation in the lower department of the building, and extended to the second floor; that about midway the length of the columns were flanges on either side, which supported the girders of the first floor, and that the jackscrews by which it was attempted to raise this column, were applied to and underneath these flanges. The tubular iron girders were constructed of four iron plates, the width of the side plates being the depth of the girders, the upper and lower plates being placed between the side plates and riveted to them; and the lower edges of the side plates resting on the cap of the column, and the ends of two of these girders, being each about 23 feet long, resting on the cap of this column. In the attempt to raise this column by means of two jackscrews, the girders were not supported between the columns upon which they rested, and the cap of the column was broken off, the column forced up through the ends of the girders resting upon it, shearing off the rivets by which the lower plates were fastened to the side plates, and bending the lower or channel plates of both girders upwards, and in consequence the building fell. Of this, at least, there was evidence on one side, and there was also evidence to show, that after the settling of the...