Mortrude v. Martin
| Decision Date | 06 May 1919 |
| Docket Number | 31974 |
| Citation | 172 N.W. 17,185 Iowa 1319 |
| Parties | O. C. MORTRUDE, Appellee, v. JAMES P. MARTIN et al., Appellants |
| Court | Iowa Supreme Court |
Appeal from Woodbury District Court.--GEORGE JEPSON, Judge.
THIS is an action at law, in which the plaintiff seeks to recover damages for personal injury received by him on May 11, 1916 said injuries having been caused by the falling of plastering from the ceiling of the store in which plaintiff was employed. Plaintiff was struck on the head by the falling plastering. He claims that his skull was fractured, and that there were internal hemorrhages, and permanent injuries. There was a trial to a jury, and a verdict and judgment for plaintiff for $ 7,500. The defendants appeal.
Affirmed.
Robert H. Munger, and Sears, Snyder & Boughn, for appellants.
O. D Nickle, and Henderson & Fribourg, for appellee.
1. The defendant Martin is the owner of the building known in the record as the Frances building, and defendants Stevens & Company, as architects and engineers, were employed by Mr. Martin to superintend and supervise the construction of the building. They did the work on the commission plan. Defendants commenced the construction of the building in 1914, but at that time, the first story only was constructed. That story was completed, and the furnished store rooms were rented by defendant Martin. One of these rooms was leased to the Gately-McIntyre Company, which occupied the storeroom as a retail clothing store. Plaintiff was employed in the store. He went to work for the Gately Company six or seven weeks before he was hurt, at which time the canopy was up, and plaintiff knew that the construction work was going on above, and that it was concrete construction work; he knew, also, that the Gately Company was a tenant. The lease provided that the tenant should pay for repairs of all kinds, in connection with said leased premises, and that the owner might, at any time, build the building higher, without the consent of the party of the second part, and without any claim from it.
Plaintiff was injured by falling plastering from the ceiling of the storeroom, caused, as plaintiff alleges, by the negligence of the defendants in allowing water to pass from above to the storeroom ceiling. Four grounds of negligence were charged in the petition; but under the evidence and the law, the trial court was of opinion that but one ground should be submitted to the jury, and that was whether defendants were negligent in permitting water and concrete to be poured on the floor or floors above the Gately-McIntyre store, causing the ceiling in the store building occupied by said company to fall. Answering separately, defendants deny generally, but admit the corporate capacity of Stevens & Company, the ownership in Martin, and the leasing of the premises, and allege that the construction work of enlarging the building was done with the full knowledge and consent of the tenant; that the entire building was constructed in conformity to plans and specifications prepared and approved by competent architects and engineers; that defendant had no knowledge of any defect or weakness in the ceiling and plastering, and any defects which may have existed were latent, invisible, and unknown defects; that the same were inspected and approved by competent inspectors. They deny that they ever directed or caused any water and concrete to be poured upon the ceiling of said storeroom, or any floor of which said ceiling was a part. Defendant Stevens & Company further says that it did not construct the ceiling and plastering complained of, and was in no way responsible for defects therein.
We do not understand either party to now claim that the ceiling and plastering were improperly constructed, or that improper material was used. The question is as to whether defendants caused or permitted water to impair the plastering, after it was constructed, and during the construction of the floors above.
The building was completed as a one-story building in 1914, and leased to the Gately Company in February, 1915. The construction work for enlarging the building was commenced about the middle of March, 1915, and it was completed as an eight-story building in 1916. Plaintiff was injured on May 11, 1916, at which time the forms were being finished on the roof above the eighth story, and there were six concrete floor slabs above the Gately store, and all forms had been removed, except in the seventh and eighth stories. There is evidence that, at that time, the concrete below the two top stories had set, and was hard, and there was no dripping of water from them. It appears from undisputed evidence, or the jury could have found, upon conflicting evidence, the following state of facts: That there was no written contract between the owner, Martin, and Stevens & Company, who were erecting the building for Martin. Stevens & Company furnished the superintendent, Stevenson, who had the selection of all the material, with the confirmation and approval of the defendant Martin. Stevenson had full charge, as superintendent of construction. He was a civil engineer, and there is evidence tending to show that he was a competent superintendent. They also supervised the labor. Martin furnished the money and paid off the labor, and contracts with other parties were let, with the confirmation and approval of Martin. Stevens & Company were acting as supervising architects for Martin, and represented him in all matters pertaining to the building. The arrangements between them were practically the same as between them for the erection of what is known as the Martin Hotel, a case which has been in this court, and is referred to in the argument.
The structural framework of the building in question, is reinforced concrete, a combination of steel rods with concrete, the last being a mixture of rock, sand, and cement. The first construction work above was to build a protection around the building over the sidewalk, and extending over the entrance to the Gately store; then the false roof, which had been constructed over the first story, was opened. This false roof was about two to three feet above the second floor of the building, at the point above the room occupied by the Gately Company, and where the plastering fell. In these openings, the forms for the columns, reaching to the third floor of the building, were placed. The forms on the second floor were about 11 1/2 or 12 feet long, and were constructed of rough pine, or hemlock, 6-inch boards, of lumber called stock lumber, set edge to edge, and not matched. For a 24-inch column, about a 36-inch hole would be cut in the false roof. The wooden forms were placed over the steel rods that came from the lower floor, over the Gately store; the form work was built first; then the steel rods were placed and wet concrete deposited; and, when the concrete was sufficiently hardened, the form work was removed, and that operation continued. The columns were constructed about the same way. After the forms were set down in, the false roof was carried over against the columns, and was flashed with tar paper and pitch. The object in the flashing and the joining of the false roof to the columns was to keep the water from getting through onto the floor. It seems to be established that proper precautions were taken by defendants to prevent water from reaching the ceiling, from storms, steam drip, and in other ways and places than through the forms over the Gately store; and as to these, defendant's evidence tends to show that the forms were properly caulked, so that they were water-tight, both above the flashing and below the flashing between the false roof and the ceiling below; but plaintiff's evidence is contrary to this.
As we view it, this is the turning point in the case, appellants contending that the evidence was insufficient to take this question to the jury, while the plaintiff contends that the evidence was ample. This fact question as to whether there was sufficient evidence of defendants' negligence is the one most elaborately argued and most seriously relied upon for a reversal. There is evidence tending to show that plastering sometimes falls without any known reason therefor. As said, appellants' evidence tends to show that the forms were properly caulked, and there was evidence by witnesses for defendants that frequent inspections were made, and that no leakage was discovered, and that, after the accident, when the rest of the plastering was taken off the ceiling, on the first floor, it could not be determined what was the cause of the falling of the plastering which injured plaintiff. We shall not set out the testimony for appellants, nor that of plaintiff in too much detail; but enough of plaintiff's evidence will be stated to show that, even though contradicted by defendants' testimony, the evidence was sufficient to take the case to the jury on the question of defendants' negligence.
The testimony for plaintiff is to the effect that some of the forms were made on the canopy over the sidewalk, and some on a vacant lot near by. A witness testified that he saw these forms erected there, and that they were stuffed with oakum, down at the bottom, just around the bottom.
There is evidence that, when the columns of the second floor were poured,...
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