Schell v. Second Nat. Bank of St. Paul

• Decision Date: 01 January 1869
• Citation: 14 Minn. 34
• Parties: THOMAS C. SCHELL v. SECOND NAT. BANK OF ST. PAUL and others.
• Court: Minnesota Supreme Court

Page 34

14 Minn. 34

THOMAS C. SCHELL

v. SECOND NAT. BANK OF ST. PAUL and others.

Supreme Court of Minnesota.

Appeal from an order of the district court, Ramsey county, denying a new trial.

The action was to recover damages for injuries to the plaintiff's person and property by the falling of a wall.

The defendant the bank owned a three-story building on the corner of Third and Franklin streets, St. Paul. In the spring of 1866 this building was burned, leaving the outer walls standing. Next adjoining this building was one owned by the defendants Dailey, considerably lower than the building owned by defendant. The fire also destroyed the upper part of the Dailey building. The wall between the two buildings was a party wall. Adjoining the Dailey building was a one-story building occupied by plaintiff as an office. On the evening of June 25th, about a month after the fire, occurred a severe storm, which blew down the party wall, and that in its fall carried a portion of the Dailey building over on the building occupied by plaintiff, crushing it down and severely injuring plaintiff, who was in at the time, and damaging his furniture and other property. He had entered his office after the storm commenced, and but a short time before the wall fell, and from the time of the fire had seen the condition of the wall. The plaintiff claimed that defendants negligently left the wall to stand in a dangerous condition and liable to fall from the time of the fire.

I. V. D. Heard and Brisbin & Palmer, for appellants, cited:

Lampreys, for respondents.

WILSON, C. J.

This action was brought for injuries done to the plaintiff's person and property by the falling of a wall owned by the defendants.

There was a verdict for the defendants, and a motion for a new trial having been denied, the plaintiff appealed.

On the trial, D. A. Monfort, a witness for the defendants, testified, among other things, that he was secretary of the directors of said bank, and kept the records thereof, and among such records was the following:

                                           "SECOND NATIONAL BANK
                                              "ST. PAUL, May 29, 1866
                

"SPECIAL MEETING.

"Present: Berkey, Braden, Edgerton, Farwell, George Harwood, Nicols, Presley.

"The meeting having been called for the purpose of taking into consideration the condition of the building belonging to the bank, corner of Franklin and Third streets, recently partially destroyed by fire, after some remarks by various members of the board, it was moved by Mr. Dailey `that a committee of three be appointed to examine particularly into the present condition of the building, corner of Franklin and Third streets, owned by this bank, and ascertain as nearly as possible the probable cost of restoring said building to a condition suitable for a hotel. Also, that said committee are empowered and instructed to at once procure lumber and materials, and have the walls of said building properly and securely supported and stayed.' The motion was carried and the committee appointed, of which Joseph Dailey was chairman."

To which the plaintiff objected, on the ground that the same was incompetent, immaterial, and improper. The objection was overruled. The plaintiff excepted. The entry was read in evidence from such original records of said bank, which had been previously identified.

The witness further testified that Thomas Fitzpatrick was employed to prop the walls by Joseph Dailey, chairman of said committee.

And thereupon the counsel for defendants asked the witness the following question:

"State whether or not that committee made a report to the bank."

Answer. "They did."

Question by defendants. "State whether that report was acted upon."

Ans. "It was."

The defendant offered to show by this witness what the committee did, and the report they made through their chairman. Offer objected to and excluded, as to everything except what the witness knew the committee did. Plaintiff excepted and exception noted.

The witness further testified: "The report was made 10 days after the first meeting, through...