Moloney v. Boatmen's Bank

• Citation: 232 S.W. 133,288 Mo. 435
• Decision Date: 26 May 1921
• Docket Number: No. 19452.,19452.
• Parties: MOLONEY v. BOATMEN'S BANK
• Court: United States State Supreme Court of Missouri

232 S.W. 133

288 Mo. 435

MOLONEY v. BOATMEN'S BANK

No. 19452.

Supreme Court of Missouri, Division No. 2.

May 26, 1921.

Motion for Rehearing Denied June 23, 1921.

Appeal from St. Louis Circuit Court; Thomas C. Hennings, Judge.

Action by Austin Moloney against Boatmen's Bank. Judgment for defendant, and plaintiff appeals. Affirmed.

Hudson & Hudson and Safford & Marsalek, all of St. Louis, for appellant.

Lehmann & Lehmanni, Abbott, Fauntleroy, Cullen & Edwards, and Curlee & Hay, all of St. Louis, for respondent.

HIGBEE. P. J.

The defendant owned a 7½story brick building at the northwest corner of the intersection of Fourth street and Washington avenue in the city of St. Louis, fronting 100 feet on Washington avenue and extending north about 120 feet. The greater portion of it was occupied by the Missouri Athletic Club. This building was about 90 feet in height. The west wall was 30 inches thick at the base and 18 inches at the top; the west side was perpendicular; the east side was broken by steps or offsets about 20 feet apart where the wall was reduced in thickness. There were rows of windows in the wall at the fifth and sixth floors. Adjoining on the west was a 4-story brick building, leased by the St. Louis Seed Company. The west wall of the defendant's building extended about 40 feet above the seed company's building. It had a frontage of about 35 feet and a depth of about 100 feet.

On Monday, March 9, 1914, the defendant's building was destroyed by fire, which started very early in the morning of that day, and was not extinguished until about 4:30 p. m. of the following day. On the first day of the fire the north end of the upper part of the west wall of defendant's building fell upon and damaged the rear part of the seed company's building. The fire gutted the interior of defendant's building, except the part occupied by the bank at the southeast corner of the building and a row of rooms and adjoining hallway on each floor at the south end of the building. The wreckage sank to the basement, forming a mass of debris reaching, in some places, to the third story of the building. During the fire a large part of the east wall fell into Fourth street. The north, south, and west walls, excepting the portion above mentioned that fell, remained standing. It was known that many of the roomers in the building had perished in the fire, and that their bodies were buried in the wreckage.

Mr. Whitaker, president of the bank, during the afternoon of the first day of the fire, attempted to get into communication with several construction companies to arrange for the removal of the bodies and take care of the ruins of the building. James M. McKelvey, the building commissioner of the city of St. Louis, testified that on Wednesday morning, after consultation with Henry Kiel, mayor of the city, he placed 30 men at work on the ruins of the building, removing debris and searching for bodies, and that on the afternoon of that day he told Whitaker it was the duty of the building commissioner to take charge of the premises because of their dangerous condition, and that he already had men there removing portions of the east wall. Whitaker thereupon agreed that McKelvey should take charge of the building, and arranged to pay the necessary force to do the work required on the building and for the removal of the bodies. McKelvey was in charge of the work until the second section of the west wall fell on March 17. The bank sent a man to keep the time of the men employed on the ruins and to pay them at the end of each day's work. It was admitted that McKelvey and the men under him took charge as representatives of the defendant.

The work of searching for the bodies and the removal of the debris was carried on unremittingly by a force of men working in two shifts starting with about 30 men and increasing from day to day to about 200 men in each shift by March 17. McKelvey personally supervised the work by day, and George Frederick, his chief deputy, at night. Seven inspectors from the building commissioner's office acted as foremen. These were paid by the city. Thirty bodies were recovered from the debris, the last one being taken out at about noon of March 17.

About the second day after the fire, the Wimmer Construction Company was employed by the lessor of the seed company to repair the damage to its building caused by the fall of the north part of the west wall of defendant's building during the fire. It employed plaintiff and other laborers in this work. Shortly before 2:10 p. m. on March 17 a strong wind arose, and blew over another section of the west wall of the bank building. The top part of the section fell to the east, while the lower part buckled and fell to the west upon the seed company's building, causing the entire four floors of the north third of the building to collapse. Plaintiff, who was working in the basement, was buried under the wreckage, and after several fours was rescued by the city firemen. HO sustained serious, permanent injuries, the gravity of which is not questioned. He brought this action on March 21, 1914. The third amended petition charges that the defendant negligently caused and permitted the west wall of said building to collapse and fall upon said building while plaintiff was so on said premises, to his damage in the sum of $50,000. The cause was tried to a jury, resulting in a verdict for defendant.

Charles E. Swingley, chief of the fire department of the city of St. Louis, called by plaintiff, testified in substance: He had 45 years' connection with the fire department, and had continuous active experience in handling and extinguishing fires, examination of buildings, and in observing buildings after fires and noting their condition as to strength and durability; that he arrived at this fire about five minutes after it started, and that it burned nearly two days: He made a close, ocular inspection of the west wall with one of his assistants, together with the mayor and Mr. McKelvey, for the purpose of arriving at an opinion as to the reasonable safety of the wall under ordinary conditions that might prevail at that time of the year. He further testified:

"I noted the condition of the wall in question after the fire. I am familiar with buildings and walls as to their vitality and durability. During my long experience in the fire department I observed measures taken to protect walls and things of that sort. I know of no practicable, reasonable way in which that wall could have been braced to have rendered it more safe than it was after the fire, without building scaffolding, which would have required a great deal of time. That scaffolding would have had to rest on this debris and the building as a foundation, unless it was removed to get a solid foundation for it. I do not think it could have been braced with any degree of strength and stability without getting down beneath the debris and resting the braces on the basement of the building. The very work that was being done at the time the wall fell would have been necessary to have a proper basis and foundation for the scaffolding to brace the wall. It would have required three or four days anyway to have built the scaffolding that would have properly braced this wall; I don't know whether they could have done it that soon. There was no way, that I know of, of removing this wall in any reasonable time, taking it down, without throwing it on the wreckage or debris of the building and the bodies therein. I examined it with reference to whether or not it could be removed or could be braced. There was a conference in which I participated, along with other gentlemen, as to the proper course to be followed in the matter of the removal of the bodies, the wreckage of the building, and of their condition and the caring for the walls."

It was his opinion that the wall had sufficient strength to stand without any wind; that a high wind would blow it over; a 30-mile gale would endanger the lives of persons near the wall.

Louis R. Lindley, called by plaintiff, testified that he was employed in the removal of the wreckage; that he had 25 years' experience in wrecking dangerous walls, and was familiar with the manner of bracing them; that he saw two cracks in the west wall, 10 or 15 feet apart at the bottom; the part of the wall between the cracks fell March 17 on the seed company's building; the wind was blowing 20 to 25 miles per hour. The fall could have been prevented by bracing the wall with guy lines to the east and west and timbers; in this way the wall could have been pulled down without its falling to the west; it could be broken off at any story; it would take 8 men 8 hours to brace the wall in the manner described; a fire has a tendency to cause brick to crumble and weaken, and "a man takes chances in my business; it is all a game of chance; I never mentioned this to a living soul connected with it that I could do it, and that I would brace up the wall and do it differently from them."

Harry Moran, plaintiff's witness, who characterized himself as a steeplejack, stack painter, hobo traveler, rigger and laborer for 25 years, said, in substance, that he saw the west wall shortly after March 9; it could have been rigged at that time so as to prevent it from falling, by placing timbers inside the ware and: outside from the seed company level, lashing the timbers through the windows, and then buying the wall east and west. With the guys the wall could be thrown either way. When so braced it could moat fall if there were a 50 mile wind, and could not buckle. It would have taken 4 men a good day to do the work spoken of by the witness. He knew the wall was dangerous.

E. M. Hubbard, cashier of the bank, plaintiff's witness, testified: The building commissioner (McKelvey) was in active charge, superintending and directing the work of removing the bodies and taking out the wreckage and caring for the premises between the 9th and 17th of...