Mercer v. Williams

• Decision Date: 23 September 1936
• Docket Number: 28.
• Citation: 187 S.E. 556,210 N.C. 456
• Parties: MERCER v. WILLIAMS et al.
• Court: North Carolina Supreme Court

187 S.E. 556

210 N.C. 456

MERCER v. WILLIAMS et al.

No. 28.

Supreme Court of North Carolina

September 23, 1936

Appeal from Superior Court, Pasquotank County; Cowper, Special Judge.

Action by R. O. Mercer, administrator of the Estate of Marvin L Mercer, deceased, against Ella K. Williams, executrix, and another.From a judgment of nonsuit, plaintiff appeals.

Affirmed.

Lessors of building held not liable for death of tenant who was killed when section of parapet wall, built on top of building with lessors' permission, collapsed during windstorm and crashed through roof and two floors after wall had been weakened by fire in adjoining building, where allegations of lessors' negligent failure to repair in breach of covenant and of negligent omission to give notice of known or latent defects were not established.

Civil action to recover damages for death of plaintiff's intestate, alleged to have been caused by the negligent failure of defendants to repair leased premises in breach of covenant to repair, or to give notice of known defects.

In September, 1933, plaintiff's intestate and D. D. Dudley leased from P. H. Williams and Mrs. Eldora Sharber a threestory brick building in Elizabeth City, known as the Kramer building, for the purpose of conducting a retail hardware business therein, under the name of Carolina Hardware Company."The contract was oral.They rented the building at $35.00 a month in advance and they were to do all the necessary repairs."

Adjoining and bounding the Kramer building on the north was the Flora building.The roof of the Flora building was 10 or 12 feet higher than the roof of the Kramer building, and, by permission of the owners, there was superimposed upon the top of the northern wall of the Kramer building a "parapet wall" from 8 to 14 feet in height.

On February 10, 1934, the Flora building was destroyed by fire and the parapet wall, above mentioned, was left standing in a weakened and damaged condition.

On March 20, 1934, during a severe wind storm, a section of this parapet wall, near the center and approximately 10 feet square, collapsed upon the roof of the Kramer building crashed through said roof and the two intervening floors, fell upon plaintiff's intestate and killed him, who, at the time, was on the first floor of the leased premises.

Shortly after the fire, and again 15 or 20 days later, the chief of police and assistant building inspector of Elizabeth City, in the discharge of his duties, examined the parapet wall in question and reported to Mr. Williams that "the wall was all right and safe and there was not any danger in it."In the meantime, however, the defendants had filed claim with the insurance company for $700, contending that the parapet wall would have to come down.This claim was finally adjusted for $200.

From judgment of nonsuit entered at the close of all the evidence, plaintiff appeals, assigning errors.

MacLean, Pou & Emanuel, of Raleigh, and M. B. Simpson and R. Clarence Dozier, both of Elizabeth City, for appellant.

Thompson & Wilson and McMullan & McMullan, all of Elizabeth City, for appellees.

STACY Chief Justice.

In view of the trial theory of the case, which is controlling on appeal (In re Parker,209 N.C. 693, 184...