Oscar Ruff Drug Co. v. W. Iowa Co., 33448.

• Decision Date: 15 February 1921
• Docket Number: No. 33448.,33448.
• Citation: 181 N.W. 408,191 Iowa 1035
• Parties: OSCAR RUFF DRUG CO. v. WESTERN IOWA CO.
• Court: Iowa Supreme Court

191 Iowa 1035

181 N.W. 408

OSCAR RUFF DRUG CO.

v.WESTERN IOWA CO.

No. 33448.

Supreme Court of Iowa.

Feb. 15, 1921.

Appeal from District Court, Woodbury County; John W. Anderson, Judge.

Action by the lessee of a building to recover damages of the lessor, for the value of a stock of merchandise consisting of drugs, paints, and oils which it is charged was totally destroyed as the result of the negligent manner in which the lessor caused certain repairs and alterations to be made upon the leased premises. There was a verdict in favor of plaintiff for $71,532.74 and interest. Defendant appeals from the judgment entered thereon. The material facts are stated in the opinion. Affirmed.E. M. Corbett, Jepson & Struble, and Shull, Stilwill & Shull, all of Sioux City, for appellant.

O. D. Nickle and Henderson, Fribourg & Hatfield, all of Sioux City, for appellee.

STEVENS, J.

Plaintiff is a corporation, organized under the laws of the state of Iowa, of which Oscar Ruff is president, and on and prior to June 29, 1918, occupied the west storeroom of a four-story building situated on the corner of Fourth and Douglas streets, Sioux City, Iowa, the basement under the same, a portion of the second, and all the fourth floor of said building as lessees of the Western Iowa Company, a corporation, appellant herein, and conducted a wholesale and retail, drug, paint, and oil business therein. The east and remaining storeroom of said building was occupied by the Chain Grocery Store, the two rooms being separated by a brick wall extending the entire length of the building, except about 20 feet at the front, and from the floor of the basement to the second story. Both rooms were 25x90 feet, fronted south on Fourth street, and were known as Nos. 401 and 403. The entrance from Fourth street was in the center of the building. The three lower stories were constructed of brick, and the fourth a mansard roof of wood and tin. Plaintiff's lease, which was entered into on December 1, 1915, by its terms expired on April 30, 1918. Several years before the lease was entered into, the floor of the east, or Chain storeroom, was lowered about 12 inches. On June 1, 1918, plaintiff and defendant entered into a contract by the terms of which defendant agreed to make certain alterations and repairs in plaintiff's storeroom, among others not necessary to mention the following:

“A. The ground floor of said store is to be lowered to or near a level with the sidewalk grade of the sidewalk on Fourth street, in front of said building.

B. A new front is to be put in said storeroom, which front shall be similar to that now in the store occupied by the Chain Grocery & Meat Company, at 403 Fourth street, Sioux City, Iowa; the front of the Douglas street side of said storeroom is to be rebuilt and an entryway to said store is to be put in, same to be as nearly like the entrance on Fourth street as the construction of the building will permit.”

This contract further provided that, in consideration of the agreements and provisions thereof, as soon as the stipulated repairs and alterations were completed, the parties would enter into a new lease for a term of six years, commencing May 1, 1918, which should “be in substantially the same form as the lease of said premises heretofore existing between the parties hereto and above referred to.” By the terms of said contract, plaintiff agreed to pay an additional $100 per month rent for the premises under the new lease. In pursuance of said arrangement, Melvin J. Smith, president of the defendant company, at once made arrangements with F. X. Babue & Sons, building contractors in Sioux City, to make the contemplated alterations and improvements in said building, specifying that the work should be done under the supervision of Joseph Awe, an employee of defendant corporation. Babue, in accordance with his agreement, furnished the workmen necessary for the job and purchased the material to be used in the building. Work was commenced about June 19, 1918, and continued until June 29th, when, shortly after the noon hour, the brick wall between the two storerooms gave way, and the building collapsed, and a fire ensued totally destroying plaintiff's stock of merchandise and fixtures. The building, as stated, was constructed of brick and mortar and was erected in 1872. The brick used in the structure were what are commonly known as sand brick, and it appears that the mortar had become rotten, so as not to hold the brick together. The center wall supported one end of the joists in both storerooms upon which the floors of the first and second stories rested. The wall in the basement was originally 21 1/2 to 22 inches wide and above the basement 13 inches. It is claimed that the collapse of the building was due to the careless and negligent manner in which the work of lowering the floor in plaintiff's storeroom was performed. The joists were cottonwood, the ends of which were inserted in the wall, and, instead of removing them, they were sawed off and lowered, so as to rest upon a single course of brick built up from the foundation. To lower the joists it was necessary to remove brick from the single course to the depth of about 12 inches. It is claimed that the wall was so weakened by the removal of the brick to permit the floors to be lowered, together with the removal of some of the ends of the joists that were sawed off and to which iron anchors imbedded in the wall were attached, by channeling into the wall and by the partial destruction of a header course of brick, by the use of a cold-chisel, as to cause it to give way and the building to fall.

It is also claimed that the defendant was negligent in failing to cause the building to be properly inspected before the work was begun and in failing to provide proper support and protection to the wall while it was in progress. But, as appellant does not claim that the question of defendant's negligence should not have been submitted to the jury, we have no occasion to go into further details of the matters relied upon to constitute negligence.

The particular negligence charged in plaintiff's petition and submitted to the jury, as stated in the court's instruction, was:

“The act of negligence charged against the defendant, and which plaintiff claims was the direct and proximate cause of the collapse of the building and resulting damage, is that the defendant was negligent in attempting to lower the storeroom floor, and in lowering the same, in the manner in which said work was done, and attempted to be done, in the old, worn, and ruinous condition in which the walls of said building were at the time said work was done, which condition was known or should have been known by the defendant at the time. And this is the only act of negligence on the part of defendant which you are to consider in your determination of this case.”

In addition to a general denial and the admission of formal matters alleged in plaintiff's petition, the defendant for answer pleaded specifically that the collapse of the building, and resulting fire, occurred without negligence upon its part, averred that the work of making alterations and repairs was done by competent workmen in a skillful manner. The defendant also alleged that, by the terms and provisions of the written lease entered into on December 1, 1915, the defendant was fully relieved and exempted from liability for the damages claimed, and that plaintiff, during the work of remodeling and repairing the building and without knowledge of the defendant or Babue & Sons, negligently caused large quantities of paint, oils, and lead and other goods and commodities to be removed from the basement and placed upon the upper floors of the building in such manner as to overload the same, and that same contributed to the collapse of the said building. The portions of the lease referred to above and set out in defendant's answer are as follows:

“And in no case whatever shall lessor (or those having estate in the premises) be liable to the lessee, or any other person, for any injury, loss or damage to any person or property on the premises, nor for the use or abuse of water, nor for leakage from the roof, nor for bursting or leakage of pipes in any part of the building nor for any damage whatever which may be caused by an overflow from sewers; nor for any nuisance made or suffered on the premises; * * * and all property of any kind that may be on the premises shall be at the sole risk of the lessee, or those claiming through or under it; and that the lessor, its successors or assigns or its agents, may during the said term, at reasonable times, enter to view the said premises or to show the property and buildings to persons wishing to lease or buy, and may remove placards and signs not approved and affixed as herein provided, and may make repairs and alterations, if it should elect so to do, and may show the said premises and building to others, and at any time within three months next before the expiration of said term may affix to any suitable part of the said premises a notice for letting or selling the said premises or building, and keep the same so affixed without hindrance or molestation. * * *”

Aside from errors which appellant claims occurred during the trial and which will be noted later, the principal contentions of defendant upon this appeal are:

(1) That plaintiff's occupancy of the building both at the time when the alterations were contracted for and when made was subject to the express agreement, quoted above, that in no event whatever should the defendant be liable to plaintiff for injury, loss, or damage to its property on the premises and that same, while kept thereon, was at the sole risk of plaintiff.

(2) That plaintiff assumed the risk of damage to its property and failed to exercise the care required of it under the provisions of its lease and the circumstances shown.

The familiar general rules governing the relation and...