Murphy v. Barlow Realty Co.
| Decision Date | 29 December 1939 |
| Docket Number | 32148,32149. |
| Parties | MURPHY et al. v. BARLOW REALTY CO. et al. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; Lars O. Rue, Judge.
Actions by Anne Murphy against the Barlow Realty Company, the Ernest M. Ganley Company, Inc., and another to recover for personal injuries, and by the special administrator of Max Zelickson deceased, to recover damages for his death. From an order sustaining a demurrer of the Ernest M. Ganley Company, Inc. Anne Murphy appeals, and from a judgment in favor of Ernest M. Ganley Company, Inc., after its demurrer was sustained the special administrator of Max Zelickson, deceased appeals.
Order and judgment reversed.
An independent contractor who, through willful negligence, rebuilt portions of damaged building so that it was intrinsically dangerous and an object of peril to those whom contractor knew would make use of it, was liable for injuries to or the death of such persons, notwithstanding that the building had been accepted by the owners with knowledge of the dangerous condition.
Syllabus by the Court .
An independent contractor, who, as here, through wilful negligence rebuilds portions of a damaged building so that it is intrinsically dangerous and an object of peril to those whom it is known will make use of it, is liable to such persons for injuries or death notwithstanding the fact, under the circumstances herein involved, that the building had been accepted by the owners and the dangerous condition was known to them.
Kyle & Kyle and R. Paul Sharood, all of St. Paul, and Maugridge S. Robb, of Minneapolis, for appellants.
D. E. LaBelle, of Minneapolis (Thomas Kneeland, of Minneapolis, of counsel), for respondent.
Two actions were instituted to recover damages, one by Anne Murphy to recover for personal injuries; the other by the special administrator of Max Zelickson to recover damages for his death. A demurrer was interposed to each complaint by defendant Ernest M. Ganley Company, Inc. Plaintiff Anne Murphy appeals from the order sustaining the demurrer. In the other case the appeal is from the judgment entered after demurrer was sustained. Hereafter we shall regard the case as though Anne Murphy alone were plaintiff since the problems presented are identical.
Defendants Red River Lumber Company and Barlow Realty Company owned a building in Minneapolis. On August 7, 1933, a fire materially damaged it and completely destroyed some portions including part of the beams, girders, and supports. The owners employed the Ganley Company to make an inspection and to report the condition. This was done. Because of the report, it is alleged that the owners knew or should have known ‘ the kind, condition, strength and availability of the ruins and the materials therein, and the propriety and impropriety of using or attempting to use the same or parts thereof in repair and reconstruction.’
In August, 1933, the owners and the Ganley Company undertook to rebuild the third floor of the premises. It appears that it was here that the severest damage occurred. This portion of the premises was to be used for warehouse purposes to store merchandise of great weights, and, in addition, to supply working quarters. The work of rebuilding involved providing supports and flooring and to provide on the second floor at the front and street end, office facilities. On the first floor in the same general location, sales and display rooms were to be built.
The complainant alleges that in the construction of the third floor proper woods and construction methods were used to the rear of the space above the office and sales rooms. But as to the space overlying them, it is alleged that defendants ‘ with full knowledge of the use to which the front portion of said third floor would be put, and that directly thereunder were quarters to be occupied by human beings, wilfully, wrongfully, unlawfully and with careless and negligent disregard of the safety of persons lawfully to come upon the premises for hte purposes for which the same was being constructed * * * did * * * use materials wholly unsuited and unfit * * * (Italics supplied).
More specifically, the charge is that the joists were made of old, inferior, cross-grained planks full of knots and weakened by fire and rot and that defendants improperly supported them by girders, beams and sidewalls.
Plaintiff also alleges that with knowledge of the inadequacy and insufficiency of the construction and its unsuitability for the purpose built, ‘ defendants did further wilfully, wrongfully, carelessly and negligently, and for the purpose of concealing the same, cover such construction both above and below with flooring and ceiling materials back to the proper construction at the rear hereinbefore described,’ and by the use of paints, up as far as the portion correctly built, concealed the defects and made it appear the supports were strong and new.
As a result of these acts, it is alleged that defendants created a trap, nuisance, and a condition intrinsically dangerous to life and limb of persons for whose use the premises were being prepared. It is then alleged that the ‘ improperly constructed portion of said building collapsed as a direct and proximate result of the wrongful, unlawful and careless and negligent acts of the defendants aforesaid.’ Then follows an allegation ‘ That as a direct and proximate result of the wilful, wrongful, unlawful, and careless and negligent acts and omissions of the defendants and each of them, as aforesaid, and as a direct and proximate result of said collapse plaintiff’ suffered certain injuries.
Plaintiff, an employe of the tenant, now sues for damages. Defendant Ganley Co. interposed a demurrer which was sustained.
At the outset, to clarify the ground for further discussion, it is essential to examine the nature of the complaint. Whatever may have been plaintiff's design, we are satisfied that under the complaint only proof of wilful negligence can sustain a recovery. The essence of the pleading, as disclosed by the outline previously given, charges that defendants wilfully and intentionally used improper materials and construction methods and purposely concealed the defective portions so that those fore-seeably likely to use the premises would be lulled and deluded into belief of safety and security although the structure was actually a trap known to be perilous to future users, who, because of the concealment, would not be aware of the intrinsic danger latent at all times.
While wilful negligence has been adopted into our law, it is not an accurate term. See dissent, Jaggard, J., in Anderson v. Minneapolis, St. P. & S. S. M. Ry Co., 103 Minn. 224, 230, 114 N.W. 1123, 14 L.R.A.N.S., 886. See 24 Minn. L. Rev. 81, et seq. But it has been employed so often by us and members of the bar that a reasonably definite meaning has attached indicating a particular form of conduct. The scope of the pleading requires proof of wilful negligence on the part of the builder in order to avoid the question of material variance. The crux of the theory of pleading disclosed is that the wilful negligence of the contractor in exposing plaintiff to a risk of injury known and appreciated by all defendants justifies imposition of liability. The source of the responsibility is the wilful creation of a trap artfully concealed by the contractor and the owners.
While it is true the complaint contains the words ‘ negligently’ and ‘ carelessly’ still these are merely one of plaintiff's general characterizations of the particular facts alleged. As we understand the complaint, the particular facts alleged are congruent with wilful negligence rather than negligence absent ‘ wilfulness.’
To illustrate, in the allegations respecting concealment of the defective structure by the use of certain materials and paint, both of the mentioned words are incorporated into the pleading along with the charge that these acts were done for the purpose of concealing the defective work. Obviously ordinary negligence is not an intentional tort. As such, it can only result from conduct uncontrolled by intent. Plaintiff has set forth in detail the specific acts upon which she relies. The general allegations must be regarded as limited and controlled by the particular allegations. As we understand the latter, they are referable to wilful negligence. A survey of the pleading indicates that the particular allegations are at odds with the general allegations of negligence and therefore the former must control the theory of the pleading. Informative is the fact that the complaint is sprinkled with allegations of knowledge on the part of the defendants. The heart of the pleading is that defendants knowingly and wilfully exposed plaintiff to peril...
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