Patterson v. Jos. Schlitz Brewing Co.

• Decision Date: 02 July 1902
• Parties: PATTERSON v. JOS. SCHLITZ BREWING CO.
• Court: South Dakota Supreme Court

91 N.W. 336

16 S.D. 33

PATTERSON v. JOS. SCHLITZ BREWING CO.

Supreme Court of South Dakota

July 2, 1902

Appeal from circuit court, Codington county.

Action by Emma Patterson against the Jos. Schlitz Brewing Company. Judgment for plaintiff. Defendant appeals. Affirmed.

George W. Case and S. B. Van Buskirk, for appellant. John B. Hanten and C. X. Seward, for respondent.

CORSON J.

This is an action by the plaintiff, as widow of Philip Patterson, to recover damages for the death of her husband, who was killed by the falling of a building in the city of Watertown, in June, 1897. Verdict and judgment were in favor of the plaintiff, and the defendant has appealed.

On the trial the defendant objected to the introduction of testimony by the plaintiff for the following reasons: "First. That the complaint does not allege that the defendant had any notice of any defect in the building, either before or at the time of the execution of the lease or afterwards before it fell. Second. The complaint does not allege that the building was leased for the purpose of a dwelling house, but that it was leased to be used as a saloon. Third. Does not allege that the plaintiff's husband did not know the condition of the building prior to the time it fell. Fourth. That the defendant, in the absence of covenants to repair in the lease, would not be liable for any injury caused by the condition of the building. Fifth. That the complaint does not state facts sufficient to constitute a cause of action." These objections were overruled, and this ruling of the court will be first considered. The complaint states in substance, after the averments, that the defendant is a corporation, and that the plaintiff is the widow of Philip Patterson; that the said Patterson lost his life on the 21st day of June, 1897, by the falling of a certain building owned by the defendant, situated in the city of Watertown; that part of the said building, namely, the first floor and the basement, had been rented and let for hire by the said defendant to the firm of Berg & Olson on or about the 1st of March, 1897, and that it had been occupied by the said firm for saloon purposes; that the said Patterson, from about the 1st day of June, 1897, and until the time of his death, was in the employment of the said firm of Berg & Olson in carrying on said business in the said building; that at the time of the leasing of the said building to the said Berg & Olson by the defendant, and up to and including the 21st day of June, 1897, the said building was in an unsafe and insecure and dangerous condition, and liable to collapse and fall to the ground at any time, the same being constructed of grout, and having a grout foundation, and, the said foundation having rotted and decayed and showed signs of having so rotted and decayed, all of which conditions existed at the time of leasing the same, and during all of the time up to and including the 21st day of June, 1897; that these conditions could have been ascertained by the said defendant by the use and exercise of reasonable and ordinary care to keep the said building in a proper condition and fit for occupancy by human beings; that the said defendant leased the said parts of the said building to the said firm during the said time without exercising reasonable and ordinary care as to its condition, and negligently let and permitted the unsafe, insecure, and dangerous condition of said building to exist during all of said time, and while the said Philip Patterson was employed therein; that the said defendant failed to exercise reasonable and ordinary care, and did negligently permit the said building to be in an unsafe and insecure condition and unfit for occupancy by human beings that while so managing and controlling said building and obtaining the profits of the same, and with authority to repair the same, it had permitted the said building to collapse and fall down, and in so doing to instantly and without notice, and while the said Philip Patterson was rightfully and without negligence on his part therein, cause his death, to the damage of the plaintiff in the sum of $2,000.

The first objection to the introduction of any testimony was that it was not alleged in the complaint that the defendant had any notice of the defect in the said building, either before or after the execution of the said lease and before the building fell. It will be observed that the complaint alleges that the defendant negligently permitted the said building to be in an unsafe condition, which resulted in its collapse but it nowhere alleges that the defendant had any knowledge of the condition of the building or information as to its condition. The appellant strenuously contends that unless it is alleged in the complaint that the defendant had actual notice of the defect in the construction of the building it is not liable for the damage resulting from its fall. The respondent, on the other hand, contends that the owner of a building is responsible for any injury occasioned to another by his want of ordinary care, and that the law in this jurisdiction upon this subject is declared by section 3603 Comp. Laws, which reads as follows: "Every one is responsible, not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter has, wilfully or by want of ordinary care brought the injury upon himself. The extent of liability in such cases is defined by the title on compensatory relief." The liability of a party for injuries resulting from the want of ordinary care in the management of his property is thus clearly defined by our Civil Code. Under the rule as laid down in this section the allegation of actual notice or knowledge of the defect in the building is not required, for the reason that an owner of property would be liable for the damages resulting to a party from the collapse of a building by reason of his failure to exercise proper care in ascertaining the condition of the building; and such seems to be the rule in many of the states. Mullen v. St. John, 57 N.Y. 567, 15 Am. Rep 530; Gill v. Middleton, 105 Mass. 477, 7 Am. Rep. 548; Watkins v. Goodall, 138 Mass. 533; Readman v. Conway, 126 Mass. 374; Looney v. McLean, 129 Mass. 33, 37 Am. Rep. 295; Ryder v. Kinsey, 62 Minn. 85, 64 N.W. 94, 34 L. R. A. 557, 54 Am. St. Rep. 623; City of Denver v. Soloman, 2 Colo. App. 534, 31 P. 507. As it is alleged in the complaint that the defendant failed to exercise proper care and was guilty of negligence in the management of the property, the complaint in that respect is clearly sufficient. The second objection,--that the complaint does not allege that the building was leased for the purpose of a dwelling house,...