Moodie Dry Goods Co. v. Gilruth

• Decision Date: 21 June 1915
• Docket Number: 3754
• Citation: 153 N.W. 383,35 S.D. 567
• Parties: JOHN MOODIE DRY GOODS COMPANY, Plaintiff and respondent, v. GILRUTH, Defendant and appellant.
• Court: South Dakota Supreme Court

35 S.D. 567, 153 N.W. 383 (1915)

JOHN MOODIE DRY GOODS COMPANY,

Plaintiff and respondent,

v. GILRUTH,

Defendant and appellant.

South Dakota Supreme Court

Appeal from Circuit Court, Codington County, SD

Hon. Carl G. Sherwood, Judge

#3754--Affirmed

Perry F. Loucks, Arthur H. Hasche

Attorneys for Appellant.

Case & Case

Attorneys for Respondent.

Opinion filed June 21, 1915; Rehearing denied August 7, 1915

McCOY, P. J.

This suit was instituted by plaintiff, as owner of certain merchandise, to recover damages of defendant, as owner of certain premises, for negligently maintaining thereon an alleged insufficient drainpipe, whereby plaintiff's said merchandise became injured by water. There was verdict and judgment for plaintiff, and defendant appeals. It appears that at all times material to this controversy defendant was the owner of a certain business building in the city of Watertown; that said building is 165 feet long and 50 feet wide, two stories high in front to a depth of about 30 feet, the remaining 135 feet back being one story. The first floor of said building constitutes a business storeroom, 165 by 50 feet. The roof over the one-story part, and being directly over the back portion of said storeroom is 135 by 50 feet, and which roof is of a saucer shape, sloping downward and inward from the outer edges to a center in the middle of said roof, and in which center there is a 6-inch diameter drainpipe leading from the center of said roof down through the storeroom to the sewer under said building; the water falling upon said roof running to the center thereof, and thence into such drainpipe and sewer. At the time of the occurrence of the alleged injury the plaintiff was occupying a portion of said building, with a stock of merchandise, being sold at retail, as a tenant of defendant. The portion of said building so occupied by plaintiff as such tenant, according to the terms of the written lease, was "the south half of the first floor and the undivided half of the second floor." Lengthwise, in the middle of the first floor of said storeroom, running east and west, is a row of pillars or posts dividing said room into the north and south halves; the plaintiff occupying the south one-half, under said lease. The said drainpipe leading from the saucer-shaped roof to the sewer is located entirely on the north half of said room, no part of said pipe being over or through any part of said building occupied or leased by plaintiff. The plaintiff contends that on the 13th day of April, 1912, during a heavy rain, the said drainpipe on the roof of said building, by and through the carelessness and negligence of defendant, became clogged and closed, and overcome by a greater quantity of water than the same could carry off, so that water accumulated in large quantities upon said roof, and of greater weight than the posts supporting the same could bear up, and that said roof, and supports thereof, and the first floor of said building, weakened and gave way and collapsed, precipitating large quantities of water through and into said storeroom, thereby wetting, flooding, damaging, and injuring plaintiff's goods, wares, and merchandise, furniture and fixtures, consisting of dry goods, notions, and articles incident thereto.

There was much conflicting testimony pro and con as to whether defendant was guilty of negligence in permitting said drainpipe to become clogged, and, also as to whether said pipe was negligently constructed, and also whether the supports thereof, and of said roof, were negligently permitted to become decayed, and also whether or not plaintiff was guilty of contributory negligence; but, as we view this case, this conflict was settled by the general verdict of the jury in favor of plaintiff, and such verdict will not be disturbed on appeal.

It is contended, however, by appellant, that under the circumstances disclosed, respondent should not be permitted to recover, because, it being a tenant in the building, it was its duty to go upon said roof and prevent such drainpipe from becoming clogged, and that respondent at all times knew, or should have known, that such drainpipe was liable to become clogged, and that as such tenant, respondent should not recover damages by reason of any defective condition of said drainpipe, roof, or leased premises, and that, as to such defects, a tenant takes property...