Mathiason v. Mayer

• Decision Date: 31 January 1887
• Citation: 2 S.W. 834,90 Mo. 585
• Parties: Mathiason, Appellant, v. Mayer et al
• Court: Missouri Supreme Court

2 S.W. 834

90 Mo. 585

Mathiason, Appellant, v. Mayer et al

Supreme Court of Missouri

January 31, 1887

October, 1886

Appeal from St. Louis City Circuit Court. -- Hon. W. H. Horner Judge.

Affirmed.

M. F Watts for appellant.

The petition stated a cause of action; the court erred in sustaining the demurrer. Addison on Torts, 302, 303, et seq.; Cooley on Torts, 589, and authorities cited.

Broadhead & Haeussler for respondents.

"Negligence is not actionable, unless it is the proximate cause of the injury complained of." Sedg. Meas. of Dam. sec. 9; Harlan v. Railroad, 65 Mo. 25; Henry v. Railroad, 76 Mo. 293. If defendant violated any city ordinance he is liable to the city; if there was such a violation plaintiff could have had him prosecuted. The building was not a nuisance. The only negligence charged against defendants is that they erected a frame house, closed in on all sides, instead of being open on one side. This was not the proximate and immediate cause of the injury.

OPINION

Norton, C. J.

This case is before us on plaintiff's appeal from the judgment of the circuit court of the city of St. Louis sustaining a demurrer to his petition. The petition substantially alleges that defendants are co-partners; that the city of St. Louis has full and complete authority and power, by its charter, to regulate, restrain and prohibit the erection of frame or wooden buildings within its corporate limits, and in pursuance of such authority enacted an ordinance, regulating the erection and construction of wooden and frame buildings that, after the adoption of this ordinance, appellant, relying on the protection secured to him thereby, erected a building within the corporate limits of said city, and in compliance with the provisions of said ordinance; after the passage of this ordinance, which prohibited the erection or construction of a frame or wooden building, except the same be open on one or more sides, the respondents erected on a lot adjacent to the said building of appellant a wooden building in violation of, and contrary to, the provisions of said ordinance, and on May 15, 1884, appellant's said building and its contents were burned and destroyed by fire communicated directly thereto from the said building of respondents, so erected and maintained in a negligent and careless manner, and in violation of, and contrary to, the provisions of said ordinance; and that the fire originated in the...