Ryce v. Whitley
| Decision Date | 18 October 1901 |
| Citation | 87 N.W. 694,115 Iowa 748 |
| Parties | MRS. LIZZIE RICE, Appellant, v. RALPH J. WHITLEY, et ux., Administrator of Estate of J. L. WHITLEY, Deceased, WILLIAMS & TOMLINSON, et al., Appellees |
| Court | Iowa Supreme Court |
Appeal from Mitchell District Court.--HON. J. C. SHERWIN, Judge.
ACTION at law to recover damages for injuries done plaintiff's goods through defendants' failure to use proper care and diligence in repairing the roof of a building belonging to J L. Whitley, deceased, in which said goods were stored. The trial court directed a verdict for defendants, and plaintiff appeals.
Reversed.
G. W Ruddick and L. M. Ryce for appellant.
W. L Eaton for appellees administrators of Whitley Estate.
G. E. Marsh for appellees Williams & Tomlinson.
OPINION
Dr. Whitely, deceased, was the owner of a two-story building, the upper story of which was occupied by plaintiff as a tenant for a millinery shop which she was conducting. There was no covenant in the lease, as we understand it, requiring the landlord to keep the premises in repair; at least none is shown in the evidence. The roof of the building was of tin, and became out of repair. Thereupon and on August 10, 1896, the owner made a contract with defendants Tomlinson & Williams to take off the old tin roof and put on a new one. Work was commenced on the 10th day of August, and continued from day to day to the 17th, when it was finally completed. During the progress of the work rain storms were frequent, and the water went through the roof, and injured plaintiff's goods. She contends that the defendants Tomlinson & Williams negligently performed their work, and failed to take the usual and necessary precaution against storms. At the conclusion of the evidence the trial court directed a verdict for defendants on the ground that plaintiff had failed to show what damages, if any, were occasioned by defendants' negligence in putting on the new roof, as distinguished from what might have been caused by the condition of the old one. The appeal is from this ruling.
It is practically conceded in argument that plaintiff's goods were seriously damaged by water coming through the roof; that defendants owed plaintiff reasonable care and skill in removing and putting on the new, and that plaintiff was free from contributory negligence. There were, then, but two things to be proven to entitle plaintiff to a verdict, or to have her case submitted to a jury: First, that defendants did not use the care or skill required; second, that plaintiff suffered damage thereby, and the amount thereof. The trial court found that there was sufficient evidence of negligence to take the case to the jury, but also held that plaintiff had not sufficiently established her damages. Of course, for every violation, invasion, or infringement of a legal right the law implies damage, and, in the absence of proof of substantial loss, nominal damages will be awarded. But this court is committed to the rule that a case will not be reversed for failure to assess nominal damages. Williams v. Brown, 76 Iowa 643, 41 N.W. 377, and cases cited. As a general rule, in order to recover substantial damages the plaintiff must show not only a wrongful act, but resulting loss, and, if it cannot be judicially determined that defendant's wrong produced the injury complained of, or if the consequences cannot be attributed to that cause for which defendant is responsible, there can be no recovery. Burruss v. Hines, 94 Va. 413, (26 S.E. 875); Fairchild v. Rogers, 32 Minn. 269, (20 N.W. 191); Becker v. Janinski, 27 Abb. N. Cas. 45, (15 N.Y.S. 675. If defendants' original and continuing wrong operated proximately in producing the damage, they are liable, even though there was another concurring cause operating at the same time to bring about the result. Gould v. Schermer, 101 Iowa 582, 70 N.W. 697. But, before this rule will apply, it must appear that the damage would not have occurred but for the defendants' negligence. If some of the damages are due to acts for which defendants are liable, and some to other causes, each independent in its sphere of operation, then defendants are not liable without proof of the damage done by them. It is only when the causes are concurrent and co-operating that defendants are responsible for the entire damage done. When there is an independent cause that may have produced part of the damage, the plaintiff must show the extent of the damages due to defendants' wrongful act. These rules are not in serious dispute between the parties. Indeed, it is well settled that in cases of tort it is necessary for the party complaining to show that the particular damage in respect to which he proceeds is the legal and natural consequence of the wrongful act imputed to the defendant. Plumb v. Woodmansee, 34 Iowa 116.
With these rules of law established, we turn now to the evidence to see if there is any proof of the damage caused by defendants' acts. The building fronts the south, and the roof slants to the north; that is to say, the roof is four feet higher at the south end of the building than at the north. The building is 70 feet long, and a room about 21 feet by 38 feet in the southwest corner was used by plaintiff for a shop and as a place for the storage of goods. The original roof was of tin, and had been on for 20 years. It had rusted and was badly out of repair, and required frequent soldering and mending. Soon after Whitley purchased the building, he decided to put on a new roof, and...
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