Wass v. Suter

• Decision Date: 25 March 1949
• Docket Number: 17740.
• Citation: 84 N.E.2d 734,119 Ind.App. 655
• Parties: WASS v. SUTER et al.
• Court: Indiana Appellate Court

84 N.E.2d 734

119 Ind.App. 655

WASS v. SUTER et al.

No. 17740.

Appellate Court of Indiana, in Banc.

March 25, 1949

Appeal from DeKalb Circuit Court; William P. Endicott, Special Judge.

Hoffman & Hoffman, of Fort Wayne, for appellant.

Barrett Barrett & McNagny, of Fort Wayne, for appellees.

ROYSE Presiding Judge.

At all of the times referred to herein, appellees were the owners of a four and one-half story building in the City of Fort Wayne Indiana. The major portion of this building was leased to the Sears Company. The portion not occupied by that Company was used for Lodge purposes by the appellees. On March 27, 1944 the roof structure and interior of this building above the fourth floor was burned out and gutted by fire. On April 11, 1944 the west top wall of this building fell outward and onto the rear of the two-story annex of the Fort Wayne National Bank Building. It crashed through said annex, crushed and killed Samuel L. Wass, appellant's decedent.

Appellant brought this action for damages against appellees. Her complaint, after averring appellees were the owners of said property and in possession and control of the exterior walls and structural parts of said building and charged with the repair, maintenance and condition thereof, alleged, in part, as follows:

'3. That on March 27, 1944, a fire of unknown origin gutted the inner portion of said Harmony Hall and Sears-Roebuck Building, leaving the west top wall of said building standing without cover and without lateral support in a dangerous, unsafe, insecure and tottering condition and liable to fall over at any time.

'4. That the defendant, Harmony Lodge No. 19, and the said defendant Trustees of said Lodge negligently permitted the west top wall of said building to remain standing in said dangerous, unsafe, insecure and tottering condition for an unreasonable period of time of 15 days after the fire aforesaid, knowing or charged with the knowledge of the fact that said walls were unsafe.

'5. That on April 11, 1944, part of the west top wall left standing after the fire aforesaid fell outward across the alley adjacent thereto and upon the Old-First Bank Building located on the property to the west of said building and adjoining the alley adjacent thereto, then and thereby killing the decedent, Samuel L. Wass'.

It further averred decedent was an employee of the Receiver of said bank and left surviving him his widow who had been damaged by his death in the sum of $10,000. Appellees answered in two paragraphs, the first admission and denial under the rules; the second raised the question of election of remedies, which latter paragraph was denied by appellant's reply.

Trial to a jury resulted in verdict in favor of appellees. Judgment accordingly. From that judgment appellant prosecutes this appeal. The error assigned here is the overruling of the motion for a new trial. The specifications of that motion assert the trial court erred in excluding certain evidence offered by appellant, and in the refusal to give and the giving of certain instructions.

The crux of the principal questions presented by this appeal is whether the doctrine of res ipsa loquitur is applicable in this case.

This doctrine has been generally defined to mean that when the thing which caused the injury to the plaintiff was under the control and management of the defendant or his servants, and the occurrence was such that in the ordinary course of things would not happen if those who had its control and management use proper care, that this affords reasonable evidence, in the absence of explanation by the defendant, that the injury arose from or was caused by the defendant's want of care; that under such circumstances there is a prima facie case of negligence. 45 C.J. 1193, § 768; 38 Am.Jur. 989, § 295; Union Traction Company of Indiana v. Berry, Administrator, 1919, 188 Ind. 514, 530, 121 N.E. 655, 124 N.E. 737, 32 A.L.R. 1171; City of Decatur v. Eady, Executrix, 1917, 186 Ind. 205, 218, 115 N.E. 577, L.R.A.1917 E, 242. It is a rule of evidence. 45 C.J. 1196, § 709; 38 Am.Jur. 994, § 298.

Where, after a fire, a wall left standing for an unreasonable time, falls without apparent cause, in the absence of explanatory circumstances, the doctrine is applicable because it leads to an inference of an omission of duty in maintaining it. Such inference is sufficient to establish a prima facie case of negligence. 45 C.J. 1201, n21; 9 Am.Jur. 225, § 30, n4; Barrett v. Stoneburg et al., 1947, 238 Iowa 1068, 29 N.W.2d 420, 422; Teter v. Olympia Lodge No. 1, I.O.O.F., 1938, 195 Wash. 185, 80 P.2d 547, 549; Sessengut, Administratrix v. Posey, 1879, 67 Ind. 408, 33 Am.Rep. 98; City of Anderson et al. v. East, 1888, 117 Ind. 126, 130, 19 N.E. 726, 2 L.R.A. 712, 10 Am.St.Rep. 35.

In the case of Teter v. Olympia Lodge No. 1, I.O.O.F., supra [195 Wash. 185, 80 P.2d 549], where the facts were strikingly analogous to those in this case, the Supreme Court of Washington said:

"The question of the liability of a landowner for damage to adjoining premises has frequently arisen in connection with the fall of walls which had been weakened and made dangerous by fire. The general rule is, that where a fire has occurred in a building, destroying the inner portion of the building and leaving the walls, if the owner permits the walls to remain standing, and they thereafter fall, he is liable to the adjoining owner for the resulting damage; for to maintain such a wall after the expiration of a reasonable time for investigation and for its removal, would not be a reasonable and proper use of one's property, as it is the duty of a landowner not to suffer such a wall to remain on his land where its fall would injure his neighbor, without using such care in the maintenance of it as would absolutely prevent injuries, except from causes over which he would have no control, but he cannot be held liable for the injury, or bound to make the structure safe, until he has had a reasonable time, after it has so become dangerous, to take the necessary precaution."

The owner is not relieved from liability by reason of the fact he employed a competent contractor to make the building safe (although that was not done in this case). Sessengut, Administratrix v. Posey, supra; Independent Five & Ten Cent Stores of New York v. Heller, 1920, 189 Ind. 554, 558, 127 N.E. 439.

The application of the doctrine is based on the theory that under the special circumstances which invoke its operation, the plaintiff is unable to show the particular act of negligence which caused the injury or that the defendant is in a better position to do so. There is some conflict among the authorities as to whether pleading a specific act of negligence waives the pleader's right to rely upon this doctrine. Many jurisdictions hold that if a case is a proper one for the application of the doctrine, the plaintiff, by pleading specific acts of negligence, does not lose his right to rely on this doctrine provided a general allegation of negligence is made. 38 Am.Jur. 1001, 305, n. 12; 45 C.J. 1226, 1227, § 786, n. 88. Indiana has adopted this view. Terre Haute and Indianapolis Railroad Company v. Sheeks, 1900, 155 Ind. 74, 91, 56 N.E. 434; Southern Railway Company et al. v. Adams, 1913, 52 Ind.App. 322, 100 N.E. 773; Louisville and Southern Indiana Traction Company v. Worrell, 1909, 44 Ind.App. 480, 86 N.E. 78 (Transfer denied); Pittsburgh, Cincinnati, Chicago & St. Louis Railroad Company v. Boughton, 1924, 81 Ind.App. 129, 134, 142 N.E. 869; Baltimore and Ohio Southwestern Railroad Company v. Hill, Adm'rx, 1926, 84 Ind.App. 354, 359, 148 N.E. 489 (Transfer denied); Bence v. Denbo, 1934, 98 Ind.App. 52, 183 N.E. 326 (Transfer denied).

In the case of Terre Haute and Indianapolis Railroad Company v. Sheeks, supra, the fourth paragraph of complaint alleged in specific details how a railway switch, in the exercise of ordinary care, should be constructed. It then averred the defendant knew how said switch should be constructed but negligently and carelessly constructed the switch in a different manner which it described in minute detail. In that case the appellant contended this paragraph of complaint did not bring the appellee within the doctrine of res ipsa loquitur. In overruling this contention the Supreme Court, 155 Ind. at page 91, 56 N.E. at page 439, said:

'It cannot be successfully asserted that because she, by her complaint, has been more particular and specific in describing the deficiencies of the switch in controversy than was necessarily required, therefore she cannot recover unless she proves all the particular defects as charged in the complaint. Reduced to a simple proposition, the gravamen of the fourth paragraph of the complaint may be said to be that, while the relation of passenger and carrier existed between appellee and appellant, she was injured by the derailment of the train upon which she had taken passage; that the derailment was due to a broken rail in a certain switch located on appellant's road near the town of Coatesville, in the construction and maintenance of which switch appellant was guilty of negligence. It cannot be said that the complaint charges only specific acts of negligence, and none in general.'

We are of the opinion the appellant's complaint was sufficient to permit her to invoke the doctrine of res ipsa loquitur.

In her case in chief the appellant introduced evidence which tended to prove appellees owned, controlled and were in possession of the building; that the fire of March 27th gutted the building. It was burned down to the fourth floor and the west wall stood about thirty feet above the fourth floor level. On the morning this wall collapsed a witness observed the only lateral supports for this...