Scharff v. Southern Illinois Contruction Company

• Decision Date: 12 December 1905
• Citation: 92 S.W. 126,115 Mo.App. 157
• Parties: SCHARFF, Respondent, v. SOUTHERN ILLINOIS CONTRUCTION COMPANY, Appellant
• Court: Missouri Court of Appeals

92 S.W. 126

115 Mo.App. 157

SCHARFF, Respondent, v. SOUTHERN ILLINOIS CONTRUCTION COMPANY, Appellant

Court of Appeals of Missouri, St. Louis

December 12, 1905

[Copyrighted Material Omitted]

Appeal from St. Louis City Circuit Court.--Hon. O'Neill Ryan Judge.

AFFIRMED.

STATEMENT.--In the year 1903, plaintiff owned and occupied a residence on West Pine boulevard, near Kingshighway, in the city of St Louis. In the fall and winter of the same year, the defendant, the Southern Illinois Construction Company, under a contract with the other defendant, the Buckingham Investment Company, was engaged in the erection and construction of the Buckingham Hotel, located near plaintiff's residence, the east wall of the hotel being removed but thirteen feet from the west wall of plaintiff's house. On December twenty-fifth, between two and three o'clock p. m., during a windstorm, a portion of the east wall, which was one hundred and eighty-seven feet ten inches long and from eighty to ninety feet in height fell toward the east and upon and against plaintiff's house, breaking in a portion of the roof, cracking and marring the west wall, breaking windows and cracking some of the interior decorations. The bricks and mortar from the hotel wall also fell upon plaintiff's yard, breaking and destroying growing trees and shrubbery therein. The suit is to recover the resulting damage.

The negligence alleged is careless, negligent and unskillful construction and erection of the east wall of the hotel and failure to properly brace the same.

The defendants filed separate answers. The one of the Buckingham Investment Company need not be noticed, as a demurrer to the evidence as to it was sustained by the court from which ruling no appeal was taken. In substance, the answer of the Southern Illinois Construction Company is, first, a general denial; second, that it was not an independent contractor but was doing the work under the direction and supervision of the other defendant and in such manner as it directed, and that it was governed and controlled in the performance of the work by the other defendant; and, third, that the wall was caused to fall by "a tornado, cyclone or violent windstorm," raging in the vicinity of West Pine boulevard and Kingshighway, in the city of St. Louis, and that the falling of the wall was "the direct result of said tornado, windstorm and cyclone, and was the act of God."

The evidence shows that the walls of the hotel are what are known as self-supporting walls, that is, they were built up from the foundation and not upon steel or iron framing; that steel or iron framing was provided for the interior structure of the hotel and this framing was fastened to the outside or brick walls by tie-beams on each floor of the hotel. The face of the east wall was unbroken, that is the facing bricks were all laid lengthwise, and plaintiff's evidence tends to show that this face wall was not properly bound, if bound at all, to the back wall, and that portions of the face wall peeled off the back wall, leaving the latter standing, and fell into plaintiff's yard. It is conceded that the two walls should have been bound together. Defendants' evidence conduces to show that they were bound together by metal bonds, shown by appellants to be the safest and most approved method of binding such walls together.

The hotel is a seven-story structure. The interior framing was built up with the outside walls, a story at a time, and plaintiff's evidence tends to show that the concrete floors (the kind put in to make the building fireproof) should have been laid as the building progressed as they served to brace the brick walls. The evidence shows that all the inside iron and steel framing (except that for the elevators) was in when the wall fell, but that floors had been laid only in the first, second and third stories. There is no other substantial evidence that defendants failed to properly brace the wall, which the evidence shows had been rapidly constructed in cold weather when the cement does not set as rapidly as in warm or moderate weather, and that the wall was what is commonly called a "green wall." Defendants' evidence is that hot water was used to set the cement mortar in the walls.

Plaintiff offered evidence showing the extent of the damage caused to her property by the falling of the wall.

To show that it was not an independent contractor, the Southern Illinois Construction Company relied upon articles 1 and 2 of its contract made with the Buckingham Investment Company. These articles read as follows:

"Article 1. The contractor shall and will provide all the materials and perform all the work necessary for the erection of a certain fireproof building, seven stories and basement, on the northeast corner of Kingshighway and West Pine boulevard, city block three thousand eight hundred and eighty-three, of the city of St. Louis, Missouri; size of ground, two hundred and fourteen feet and seven inches, on West Pine boulevard; said building to be erected complete according to descriptions as shown on the drawings and revised drawings and described in the specifications and addenda thereto prepared by H. F. Roach, architect, which drawings and specifications and addenda are identified by the signatures of the parties hereto and become hereby a part of this contract.

"Article 2. It is understood and agreed by and between the parties hereto, that the work included in this contract is to be done under the direction of the said architect, and that his decision as to the true construction and meaning of the drawings and specifications shall be final. It is also understood and agreed by and between the parties hereto that such additional drawings and explanations as may be necessary to detail and illustrate the work to be done, are to be furnished by the said architect, and they agree to conform to and abide by the same so far as they may be consistent with the purpose and intent of the original drawings and specifications referred to in article 1.

"It is further understood and agreed by the parties hereto that any and all drawings and specifications prepared for the purposes of this contract by the said architect are and remain his property, and that all charges for the use of same, and for the services of said architect are to be paid by the said contractee."

The Southern Illinois Construction Company also relied upon the evidence of Harry F. Roach, who testified that he superintended the erection of the building and saw that it was constructed according to plans and specifications.

C. L. Gray, secretary and manager of the Southern Illinois Construction Company, testified as follows:

"Q. With reference to the east wall, on the twenty-fifth day of December, 1903, how far had you progressed with the construction of that wall? A. The east wall was entirely completed, unless, perhaps, there was some little brick work above the roof line and the centering for the roof, for the concrete floors or what has been described here to-day as false work for concrete floors, was in with the exception of two panels, I mean by panel--we call a panel the space that is surrounded by the floor beams, I mean surrounded by the wall on one side, a tie-beam on either of the other sides, and a floor-beam on the side parallel with the wall, and the centering was all in with the exception of two panels in the roof of the east wall.

"Q. You may tell the jury, if you know, what precautions, if any, were taken during the construction of the building to hold the iron and walls and other parts of the building in place? A. The precautions taken were the usual precautions taken in the construction of a building of that character, which consisted of a system of temporary bracing that would go through the entire structure, beginning with the first or ground floor level, and running to the roof, embracing all iron girders, and by bracing the iron work and by the system I have already explained of the tie beams being built into the several walls, also forming a brace to walls themselves, so far as it is possible to brace any structure of that character."

The most reliable and satisfactory evidence in regard to the windstorm prevailing at the time the wall fell is that of Edward H. Bowie, who was in charge of the United States Weather Bureau at St. Louis, which evidence is taken from his records kept at the time and is as follows:

"A. The temperature rose from 30 degrees at seven a. m. to maximum of 42 degrees at two-thirty p. m.; then begun an abrupt fall, the thermometer registering 16 degrees at seven p. m. and a minimum of 8 degrees at midnight; making a range of 34 degrees, mean temperature 25 degrees, which was 7 degrees below normal. Brisk winds from the west in the morning, becoming high from southwest at midday; from twelve noon to two-twenty p. m. the velocity was high from the west at the latter moment the wind veered to northwest and continued a gale until seven p. m., after which time the velocity gradually diminished; maximum velocity 48 miles per hour from the northwest at two-thirty-five p. m.; extreme velocity at same time 58 miles per hour. The day had been practically cloudless until two p. m., when a bank of stratus clouds appeared in the northwest, presaging the approach of a severe squall which swept over the city during the ensuing hour.

"Q. You say the greatest velocity was 58 miles an hour; that was during what time? A. That was at two-thirty-five p. m.

"Q. How long did the wind have to continue at that rate to make that record? A. A fraction over a minute.

"Q. Would that indicate the maximum velocity? A. That is the time that it took one mile of wind to pass the instrument.

"Q. Would that indicate the greatest velocity? A. There may...