Seibert v. McManus & Long

• Citation: 104 La. 404,29 So. 108
• Decision Date: 22 May 1900
• Docket Number: 13,123
• Parties: THOMAS J. SEIBERT v. MCMANUS & LONG
• Court: Supreme Court of Louisiana

29 So. 108

104 La. 404

THOMAS J. SEIBERT v. MCMANUS & LONG

No. 13,123

Supreme Court of Louisiana

May 22, 1900

January 1900

Rehearing refused.

APPEAL from the Civil District Court, Parish of Orleans -- Monroe, J.

Lazarus & Luce, for Plaintiff, Appellant.

Bernard McCloskey, for Defendants, Appellees.

NICHOLLS C.J. MONROE, J., recused, having decided the case whilst sitting as judge of the District Court.

OPINION

NICHOLLS C.J.

STATEMENT THE CASE.

Plaintiff's demand is based upon allegations that the firm of McManus & Long, composed of Hugh McManus and Nicholas Long, both of your said city and State, and the individual members of said firm, are legally and justly, and in solido, indebted to petitioner in the sum of six thousand seven hundred dollars, for this, to-wit:

That on and before August 23, 1895, petitioner owned three lots in the square bounded by Carondelet Walk, St. Peter, Rocheblave and Dorgenois streets, in this city; that there was constructed and erected on said lots, and owned by petitioner, a dwelling house, cooper shop, work shop, warehouse, and other outbuildings; that the said defendant firm owned a lot immediately adjoining that of petitioner, and which was formerly part of the same; that the said firm owned and operated on their said lot a cooper shop or factory; that on or about the night of August 23, 1895, in the early part of the night, a fire originated in the cooper shop of said defendants, destroying the same; that the flames and cinders from said fire communicated to the dwelling house and cooper shop of petitioner; that by reason of said fire his cooper shop was entirely destroyed, with all the materials, tools, and implements therein, and that the dwelling house of petitioner was almost entirely destroyed, it being so badly injured as to become an almost total wreck.

Petitioner avers that said fire originated and was caused by the gross fault and negligence of said defendants and persons in their employ; that there was a vice or defect in the construction of the furnace and burner of defendants, and which was largely the cause of said fire; that shavings were burned in the burner every day and were left burning there after the shop was closed at night, burning until late in the night; that no night watchman, nor any one else, remained on the premises at night; that, as aforesaid, the fire was largely caused by the vice or defect in the construction of said burner and furnace; that petitioner believes that the brick work of said burner was built around the studdings on which the roof of the house rested for support; that the studdings caught fire from the burner; and that it was due to this special fault of construction that the said fire originated.

The petition sets forth the elements of damage in detail.

The prayer of the petition is for judgment in solido against the partnership of McManus & Long, and the individual members thereof.

Defendants answered, pleading the general issue.

The District Court rendered judgment in favor of the defendants, and plaintiff appealed.

OPINION.

The plaintiff claims that he has shown that there was negligence in the construction of a certain furnace, chimney and fireplace, which the defendant, Long, erected at the gable end of a building on his property which he was altering to convert into a cooper shop.

The building was of wooden frame, surrounded upon the outside with corrugated iron instead of weather boarding, and ceiled within with planking.

In making the change the wooden upright posts at the gable ends, and the corrugated iron thereto attached, were cut off at a certain distance from the bottom, the chimney was run up on the outside of the building, the brick walls of the sides of the intended furnace were projected into the building sufficiently far to enable the end of the cut-off posts to rest upon bricks placed across the side walls, forming, as it were, a brick mantel piece, as the inner front of the furnace.

The wooden posts were not removed, but permitted to remain above as they had been before, the space between them being filled up with brick, running back until they reached the corrugated iron behind. The posts were two inches wide by four in depth. The ceiling just above the front or inner end of the furnace must have been temporarily removed but afterwards replaced. The front wall of the chimney, that next to the building, seems to have been nine inches deep; the depth of the...