McAnany v. Henrici

• Decision Date: 29 November 1911
• Citation: 238 Mo. 103,141 S.W. 633
• Parties: McANANY v. HENRICI et al.
• Court: Missouri Supreme Court

141 S.W. 633

238 Mo. 103

McANANY v. HENRICI et al.

Supreme Court of Missouri, Division No. 1.

November 29, 1911.

1. EVIDENCE (§ 506)—OPINION EVIDENCE— MATTERS OF COMMON KNOWLEDGE—MOLDING ON BUILDING.

In an action against the owner and tenant of a building, for personal injuries caused by being struck by a molding board which fell from the building as plaintiff was passing, the testimony of experts that from an examination made by them of the molding and the nails with which it had been fastened it must have been in an insecure condition for a long time before the building was let to the tenant, and for 20 months or more before the accident there must have been a crack or opening between the molding and the parts of the building to which it was attached, all of which could have been seen and described by the jurors, was inadmissible.

2. EVIDENCE (§ 508)—COMPETENCY OF EXPERTS — "EXPERT TESTIMONY" — "EXPERT WITNESS."

"Expert testimony" is the opinion of a witness possessing peculiar knowledge, wisdom, skill, or information regarding a subject-matter under consideration acquired by study, investigation, observation, practice, or experience, and not likely to be possessed by the ordinary layman or an inexperienced person, who is incapable of understanding the subject without the aid of the opinion of some person who possesses such knowledge or experience; and a person who is competent to give expert testimony is denominated an "expert witness."

3. EVIDENCE (§ 549)—OPINION EVIDENCE— OPINION BASED ON OPINION.

Plaintiff, in an action against the owner and tenant of a building for personal injuries caused by being struck by a molding board which fell from the building, attempted to show by expert testimony: First, that there must have existed a crack or opening between the molding and the parts of the building to which it had been fastened; and, second, that such crack or opening weakened or was evidence of the weakened condition of the molding, and its fastenings. Held, that such testimony was inadmissible, because it attempted to base an opinion upon an opinion.

Appeal from Circuit Court, Jackson County; Charles R. Pence, Special Judge.

Action by Philip McAnany, a minor, by Mary McAnany, his next friend, against William C. Henrici and another. Judgment for plaintiff, and, from an order granting a new trial, plaintiff appeals. Affirmed.

The plaintiff, on July 3, 1905, while walking along one of the principal streets of Kansas City, was struck on the head and seriously injured by the falling of a board, known as "crown molding," which had blown from a certain building presently to be described, belonging to the defendant Henrici, and occupied by defendant Shipley as his tenant. Suit was brought by the plaintiff against both of said parties to recover $15,000, damages for the personal injuries sustained, which it is claimed was caused by the negligence of the defendants. A trial was had which resulted in a verdict and judgment for the plaintiff for the sum of $10,000. A motion for a new trial and an arrest of judgment were filed, which were by the court sustained, for the reason, assigned by the court, that it had erred in admitting certain expert testimony. From the order of the court granting the new trial, the plaintiff duly appealed the cause to this court.

The facts of the case are few, simple, and practically undisputed, which are as follows:

For some time prior to the year 1903, the respondent Henrici was the owner of the building in question, located at No. 1413 Genesee street, Kansas City, Mo., which was a frame structure, one story in height, and was about 23 or 24 years old, and had been used as a church, but subsequently by respondent Shipley, for storage purposes. After the Missouri river flood of the summer of 1903, the defendant Henrici had the building repaired and repainted all over, by a firm of contractors known as the Pelletier Construction Company, of that city. The building was located in the flood district, and for that reason the repairing before mentioned became necessary, but the crown molding previously mentioned was not affected by the waters. But the employés of the construction company testified that in repairing the building they made a thorough inspection of the entire structure, including the crown molding, and wherever they found a board off, or loose, they replaced it, and renailed all loose boards and timbers. The painters who did the painting (two coats) for the contractors also testified that while doing the painting they inspected and painted the entire building, including the crown molding. Also the respondent Henrici testified that prior to the time when the repairing was done, with that object in view, he made a thorough inspection of the entire structure, crown molding included, and ascertained what repairs were necessary, and then employed said contracting company to do the work; and that, after the work was completed, he again inspected it, to see if the work had been done according to contract. Shipley, the other respondent, testified that at the time he rented the building, and frequently thereafter, he made careful inspections of the building. After thus familiarizing themselves with the condition of the building, all the parties mentioned testified that they never saw or detected that the crown molding was loose, or otherwise in a defective or dangerous condition, prior to the time of the injury, and thought they would have seen it, if any such condition existed. Several disinterested witnesses, who had frequently passed the building during the previous years, testified that they had, in the ordinary way, while passing, observed the building and had seen no defects about it, and that they saw nothing which indicated anything to the contrary. The testimony for the appellant was to the effect that the building, as previously stated, was an ordinary, one-story frame building, fronting west, with what is known as a gable front. The highest point of the roof, which was in the center of the building, was not shown, but it sloped equally in both directions, presenting a front in the shape of the letter V, inverted. The building stood close to the property line, and the sidewalk ran along the front thereof. That prior to the time Henrici had the building repaired there were many loose weatherboards scattered all over the same, most of which were nailed back, while others were removed and were replaced with new ones. That these boards had become loose, because the nails which had held them rusted in two, probably caused by the waters of the flood. On the day of the accident the wind was quite high, but not more than what might have been expected in that climate.

I copy the following almost literally from the statement of the case, made by counsel for appellant, which the evidence tends to support, viz.: While plaintiff was on some errand, one of the crown moldings descending from the top of the roof in the center on the south side to the lowest point of the eaves on that side fell and struck him. The length of the board was about 14 feet. This crown molding on buildings is a part of the finish or decoration and does not serve any direct useful purpose. The edge of the roof extends over the building and is referred to in the testimony as the "eaves." Back from the outer lines of the eaves and perpendicular from and at right angles with the eaves is the "facia." The crown molding stands at an angle of about 45 degrees from the edge of the eaves downward and inward to the facia, and necessarily has beveled edges at both places of contact, and is held in place by nails driven through the crown molding into the eaves on one side and the facia on the other. This particular piece of molding was nailed, in the opinion of experts, based on an examination of the remnants, with cut steel nails. Cut steel nails differ from wire nails in their form, in this: That the cut steel nail tapers from the head to the point and the point itself is blunt. The wire nail is round and equal in diameter its entire length except at the extreme end where it sharply tapers down to a small point. These nails differ in their effect upon the fiber of the wood into which they are driven and in their holding qualities, in this, that the blunt point of the cut steel nail crushes the wood and breaks and destroys the fiber as it is driven in, so that, the fiber being broken, the wood does not close with the tendency to compression around the nail, as is the case with a wire nail, where the fine point simply spreads the fiber and leaves it unbroken to close tightly around the nail. When a cut steel nail begins to rust away, the fiber does not hold it so tightly, and increasing quantities of moisture may enter, and, as the fiber does not shrink up around the tapering nail, there is a tendency to loosen and let the wood slip along it in whatever direction pressure or gravity tend to draw it, thereby exposing part of the nail freely to the weather and leaving it loose in the wood. With the wire nail of equal thickness substantially its entire length and with the fiber spread instead of broken, this tendency to rapidity in the deterioration of the nail itself and the looseness...