McBride v. Scott

• Decision Date: 29 January 1901
• Citation: 84 N.W. 1079,125 Mich. 517
• Court: Michigan Supreme Court
• Parties: McBRIDE v. SCOTT et al.

84 N.W. 1079

125 Mich. 517

McBRIDE v. SCOTT et al.

Supreme Court of Michigan

January 29, 1901

Error to circuit court, Wayne county; Robert E. Frazer, Judge.

Action by Joseph McBridge against John Scott and others for injuries received by the collapse of a building. A demurrer was interposed by the defendants John Scott, Arthur M. Scott, and Maxwell H. Grills, the other defendant not joining therein. From a judgment sustaining the demurrer, the plaintiff brings error. Reversed.

S.E. Engle, for appellant.

Earl D Babst and Otto Kirchner, for appellees John Scott & Co.

Brennan Donnelly & Van De Mark, for remaining defendants and appellees.

MOORE J.

The plaintiff commenced suit against defendants by declaration. Some of the defendants pleaded thereto. Others of them demurred to the declaration. The circuit judge sustained the demurrer. The case is brought here for review by the plaintiff. The declaration by very long. We insert here only a portion of it, but enough to answer the purposes of the inquiries involved:

'Joseph McBride, the plaintiff herein, by Seth E. Engle, his attorney, complains of James H. Moore, John Scott, Arthur M. Scott, Maxwell H. Grills (the last three doing business under the style John Scott & Co.), Enoch W. Wiggins, Col J. M. Wood, Richard J. Thompson, Geo. O. Muhlfeld, Alphonse De Man, and Florimond De Man (these last two co-partners as De Man Bros.), William Reich, Alexander Chapoton, Edward Schmitt, Clara S. Scherer, and the Peninsular Engineering Co., a corporation existing under the laws of, and doing business in, Michigan, having its office in the city of Detroit, and J. C. Dantziger, A. A. Cowles, F. A. Goodrich, and William Gerhauser, members of said corporation, in an action of trespass on the case, filing this declaration and entering a rule to plead as commencement of suit: For that whereas, heretofore, to wit, before the 5th of November, 1898, the date of the culmination of the grievances hereinafter complained of, there was and had been in the city of Detroit, on Monroe avenue, near Campus Martius, a parcel of ground in which said James H. Moore, and Enoch W. Wiggins, as his agent and manager and attorney in fact, had a proprietary interest, to wit, the ownership by land contract, or of a term of years therein, or otherwise; and the said Edward Schmitt and Clara S. Scherer had also a proprietary interest, to wit, the ownership of the fee thereof beyond the contract or term of years or otherwise; and that the said James H. Moore and his agent, said Wiggins, under a power of attorney, with the consent and concurrence of said Schmitt and Scherer, for expected revenues and profits to be derived therefrom to themselves respectively, proposed to erect upon said property a building for amusement purposes, including a theater with a large stage and auditorium, the roof over which stage and auditorium should be supported by material extending in a span from wall to wall across the auditorium and stage from side to side transversely over the path of the entrance from Monroe avenue; the entire building, including the roof, to be fireproof; the roof to be of great height from the ground, to wit, about or upwards of 100 feet, and the span of the supports to be very long, to wit, about 73 feet; the trusses bridging said span and the very high trestlework frame, to wit, of about 100 feet from the ground, resting upon the trusses and extending up to and supporting the roof, and the framework of the roof itself, all to be composed to steel, and the panels of the roof frame to be filled with some kind of suitable concrete, cement, and the like, the surface extending sufficiently above the steel framework to make a connected, continuous, smooth-surface cement roof, to be covered with an ordinary tar and gravel roofing; said trusses so spanning the building and supporting the entire steel frame trestlework above them, together with the roof resting thereupon, to have no supports underneath except by said brick side walls, respectively, at each end of the trusses. The danger arising from such a building, both when completed and while in the course of construction, is, was, and must have been, to competent artisans, obvious, unless planned and executed with great skill, care, and experience in that kind of construction, it not being a building of steel framework from the foundation up, but, instead thereof, merely brick walls, which walls alone were to support at a great height, to wit, of 80 to 90 feet, the whole of said high, tall, steel construction, together with the ceiling and fixtures attached beneath, and the roof upon the top. It was and must have been evident to competent architects and engineers that such walls required the utmost strength, firmness, durability, and perfect adaptability in order to support, at so great a height, the adequate and necessary steel work for the purpose aforesaid; and it was and must have been in like manner obvious that the said extensive and tall steel trusses and trestlework so resting upon mere walls at such height required such strength, adaptation, rigidity, and firmness as to rest and remain quiescent upon the walls supporting it, as well as to safely sustain at the same time, in a like quiescent state, the great weight, not only of the roof, together with the framework itself, but such increment of load as might arise from other causes,--as the elements, falling snow, etc.; and that, unless said walls and said steel work and roofing were of proper material, dimensions, construction, and workmanship, it was obvious that great danger would and must impend over those who might occupy the building when completed, or who might be engaged on or about the premises during its construction, by reason of inevitable tendency to topple, sway, bend, twist, and warp out of alignment, out of plumb, and from proper bearings and position, resulting in total collapse. In the course of the construction of said building heretofore, to wit, on the 5th day of November, 1898, the roof being just nearly or quite completed, the roof and walls and the steel framework collapsed and fell all together in a mass of d�bris, wounding and killing many engaged thereon and about the premises, among whom was the plaintiff, receiving the injuries hereinafter set forth. * * *

'Third Count. And for that whereas, the said four proprietary defendants, proposing to erect the theater aforesaid, of the size and general plan in the first count set forth, they employed the said John Scott & Co. as their agent to supervise, inspect, and carry forward said enterprise, and made said John Scott & Co. the general supervisors thereof, and their agent therein; and they further employed, and allowed to be employed, the other defendants, as in said first county mentioned, to carry forward the other respective parts of the structure, as in said first count stated, and retained the control over them and the right to control, supervise, and direct as to the work, materials, manner, method, and details of construction to the completion thereof, and through their agent, the said John Scott & Co., whom they made their agent for that purpose; and their said agent, John Scott & Co., and their other employ�s were each and all negligent in producing such a defective structure, not only as in said first count stated, but also as more fully hereinafter in this count set forth; and the said J. M. Wood participated and contributed, and was allowed to participate and contribute, to the grievances aforesaid as in said first count stated. In addition to neglect of duty on the part of the various defendants and their defective work as already set forth in the first count, and made a part thereof by reference thereto, the plaintiff avers the neglect of duty on the part of the several defendants so employed and permitted to be employed by said proprietors, and to participate and to be engaged in said enterprise, and to conduct the respective parts thereof as follows: It was the duty, under the circumstances, of John Scott & Co. to exercise and apply skill and diligence in the inspection of said plans, and to ascertain and to know and to understand the defects and dangers thereof, if any, and to point out such defects and dangers, and to give warning against them, and to refuse to proceed or to allow such a structure to be built until such defects and dangers should be corrected and removed; plaintiff avers that in this respect the said John Scott & Co., the agent selected by the proprietors aforesaid, wholly and fatally neglected said duty on their part, and raised no objection, gave no warning, pointed out no defects, but deliberately, negligently, and recklessly proceeded with the construction of said building upon the plans selected by the proprietors, and adopted by them as aforesaid. The plaintiff avers that said plans were defective, and among their defects he proceeds to point out, so far as he is able at the present time, the main ones. He avers: That the plans and specifications as a whole were such as would produce a structure weak, frail, and liable to collapse, and therefore extremely dangerous. That the roof, being of the dimensions of about 67 by 73 feet, consisting of heavey material, to wit, cakes of concrete laid in the panels of the steel framework, was too heavy, and of such great weight that the trusses and trestlework supporting it from beneath were insufficient, and the structure was top-heavy and toppling. That the trusses were insufficient in number. That the span of the trusses, being about 73 feet from wall to wall, should have been increased in number; and whereas only two trusses were used to span the auditorium, more should have been used. That the upper and lower girders of the trusses...