Moloney v. Boatmen's Bank

• Decision Date: 23 June 1921
• Parties: AUSTIN MOLONEY, Appellant, v. BOATMEN'S BANK
• Court: Missouri Supreme Court

232 S.W. 133

288 Mo. 435

AUSTIN MOLONEY, Appellant, v. BOATMEN'S BANK

Supreme Court of Missouri, Second Division

June 23, 1921

Appeal from St. Louis City Circuit Court. -- Hon. Thomas C Hennings, Judge.

Affirmed.

Hudson & Hudson and Safford & Marsalek for appellant.

(1) Instruction number seven given for defendant was erroneous because it ignored the issue of defendant's negligence in failing to brace or secure the wall. Price v. Met. St Ry. Co., 220 Mo. 463; Orr v. Bradley, 126 Mo.App. 148; Steffens v. Fisher, 161 Mo.App. 395. (a) The burden was upon defendant to show that the fall of the wall was not due to negligence on defendant's part in any respect. Turner v. Haar, 114 Mo. 346; Franke v. City, 110 Mo. 526; Teepen v. Taylor, 141 Mo.App. 286; Scharff v. Const. Co., 115 Mo.App. 167; Lynds v. Clark, 14 Mo.App. 74; Cork v. Blossom, 162 Mass. 333; Dettmering v. English, 64 N. J. L. 16; 3 Shearman & Redfield on Negligence (6 Ed.), sec. 702, p. 1826. (b) Negligence in failing to secure or protect a wall, damaged by fire, as a result of which it falls and causes injury to another, renders the owner liable. Teepen v. Taylor, 141 Mo.App. 286; Reinhardt v. Holmes, 143 Mo.App. 222; Schwartz v. Adsit, 91 Ill.App. 580; Biedler v. King, 209 Ill. 310; Nordheimer v. Alexander, 19 Can. S.C. 248. (c) A wall left standing in a dangerous condition after a fire is a nuisance, and the owner is required to use such care as will absolutely prevent injuries thereby, after a reasonable time to inspect the wall. Ainsworth v. Lakin, 180 Mass. 401; Grogan v. Foundry Co., 87 Mo. 328; Simmons v. Everson, 124 N.Y. 319; Lynds v. Clark, 14 Mo.App. 79. (d) The fact that there were dead bodies in the ruins did not justify defendant in failing to exercise proper care, as above defined, with respect to the wall. Lauer v. Palms, 129 Mich. 671; Green v. Eden, 28 Ind.App. 583; Smith v. Am. Soc., 7 Misc. 158, 27 N.Y.S. 315; Guiney v. Railroad, 167 Mo. 604; City v. St. Ry. Co., 90 A.D. 66, 182 N.Y. 536; Gentry v. Railroad, 172 Mo.App. 138. (2) Instruction number eight, given for defendant, misstates the law in the following respects: (a) It fails to require the jury to find that defendant exercised ordinary care. Charless v. Rankin, 22 Mo. 573; Teepen v. Taylor, 141 Mo.App. 285. (b) It erroneously authorizes the jury to find that defendant could escape liability by delegating to others its duty of caring for its dangerous premises. Teepen v. Taylor, 141 Mo.App. 282; Charless v. Rankin, 22 Mo. 566; Dillon v. Hunt, 105 Mo. 161; Carson v. Const. Co., 189 Mo.App. 126; Sessengut v. Posey, 67 Ind. 408; Steppe v. Alter, 48 La. Ann. 367; City of Anderson v. East, 117 Ind. 130; Engle v. Eureka Club, 59 Hun, 593, 14 N.Y.S. 184; Cork v. Blossom, 162 Mass. 330; Lawver v. McLean, 10 Mo.App. 590. (c) It erroneously permits the jury to find that defendant could delegate its duty of inspection to persons not competent to pass upon the condition of the wall. Pollock on Torts (Webb's American Ed.) p. 542; Clark v. Pope, 70 Ill. 133; Sherman v. Bates, 15 Neb. 18; Schreiner v. Miller, 67 Iowa 91. (3) Instruction number nine given at defendant's request, is erroneous in singling out and commenting upon the fact that there were bodies in the ruins, and ignoring all other facts in evidence to be considered by the jury in determining whether defendant exercised ordinary care. Strother v. Milling Co., 261 Mo. 22. (4) Instruction number eleven states that in considering the condition of the wall and defendant's duty regarding the same before it fell, defendant could consider only the facts and conditions which existed at the time and was not able to take into consideration facts or conditions which subsequently developed. This statement is not the law. Defendant was required to and could consider not only the existing condition of the weather but conditions which were reasonably likely to arise. Jones v. Railroad, 178 Mo. 546; Steffens v. Fisher, 161 Mo.App. 393; Teepen v. Taylor, 141 Mo.App. 285; Brash v. City, 161 Mo. 437; Woods v. City, 58 Mo.App. 272; Benton v. City, 248 Mo. 111. (5) The testimony of witness McKelvey over plaintiff's objection, that since the accident he had not been apprised of anything that under the circumstances then existing could have been done to handle the situation in a safer manner than that in which it was handled, was improper and constituted an invasion of the province of the jury. The testimony of witness Whitaker that in handling the situation after the fire he was doing the best he could and was doing about anything any man could do under the circumstances, was improper. It was a conclusion and invasion of the province of the jury. Dammann v. City, 152 Mo. 200; Disbrow v. Ice Co., 170 Mo.App. 585; Landers v. Railroad, 134 Mo.App. 80; Central Railroad Co. v. Bagley, 121 Ga. 781; Springfield Railroad Co. v. Puntenney, 101 Ill.App. 98, 200 Ill. 9. (6) The testimony of witness Whitaker that after the fire the city was in charge of the bank's property and the bank had no possession of it at all, was improper, as a conclusion of law and an invasion of the jury's province. Kendall Co. v. Bain, 46 Mo.App. 581. Furthermore, it was an incorrect conclusion of law 1 Thompson on Negligence (2 Ed.), sec. 579, p. 535; Id. p. 553; City v. East, 117 Ind. 126.

Lehman & Lehman, Abbott, Fauntleroy, Cullen & Edwards and Curlee & Hay for respondent.

(1) The defendant was warranted in allowing the wall to stand, as it was when the fire was extinguished, while the work of rescuing the dead bodies was being prosecuted, provided a reasonably careful and prudent person would have done so, under the same circumstances. Orr v. Bradley, 126 Mo.App. 146. (2) (a) Defendant had no right to throw or pull the wall upon the premises of the Seed Company, unless there was an immediate and imperative necessity therefor. American Paint Works v. Lawrence, 3 Zabriskie, 590, 57 Am. Dec. 420; Hale v. Lawrence, 1 Zab. 714, 47 Am. Dec. 190. (b) Defendant had no right to throw the wall upon the dead bodies, caught in the ruins, and would have been liable for so doing, to the relatives of the dead, unless exercised upon the doctrine of necessity above stated. Larsen v. Chase, 47 Minn. 307, 28 Am. St. Rep. 370; Foley v. Phelps, 1 A.D. 551; Kyles v. Southern Railroad, 147 N.C. 394; Pierce v. Proprietors of Swan Cemetery, 10 R. I. 227, 14 Am. Rep. 667; Floyd v. A. Coast Line Ry. Co., L.R.A. 1915B, p. 519. (c) It was defendant's duty to rescue the dead bodies as quickly and with as little mutilation as possible. Cases last cited. (3) It was not necessary for the officers of defendant personally to supervise and direct the work of rescuing the dead bodies and caring for the ruins of the burned building. Defendant had the right to delegate such task to competent and reputable agents. If defendant did so, and if such agents exercised such care in accomplishing the work as a reasonably careful and prudent person would have exercised under the same circumstances, then defendant is not liable. New Orleans & Northeastern R. R. Co. v. Jopes, 142 U.S. 18; McNerney v. Forrester, 19 Wash. L. Rep. (Can.) 32; Olsen v. Meyer, 46 Neb. 240. (4) Even if it should be found that some of the instructions are subject to criticism or that "they may not come fully up to the standard of perfection required by the criticisms of defendant's learned and ingenious counsel," yet it must be held that "upon the whole of the evidence the verdict was manifestly for the right party" and should be affirmed. R. S. 1919, sec. 1276; Peterson v. Transit Co., 199 Mo. 344; Shinn v. Railroad, 248 Mo. 182; Noble v. Blount, 77 Mo. 239; Haehl v. Railroad, 119 Mo. 344; Fox. v. Windes, 127 Mo. 514; Sherwood v. Ry. Co., 132 Mo. 344; Schuepbach v. Gas. Co., 232 Mo. 612; Mockowik v. Railroad, 196 Mo. 568; Moore v. Lindell Ry. Co., 176 Mo. 545; Litzegren v. United Rys. Co., 227 S.W. 929; McManama v. Railroad, 175 Mo.App. 54.

OPINION

HIGBEE, P. J.

The defendant owned a seven-and-a-half story 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 four-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...