Waterhouse v. Jos. Schlitz Brewing Co.

• Citation: 94 N.W. 587,16 S.D. 592
• Parties: DAVID WATERHOUSE, Plaintiff and respondent, v. JOSEPH SCHLITZ BREWING COMPANY, Defendant and appellant.
• Decision Date: 25 April 1903
• Court: Supreme Court of South Dakota

16 S.D. 592

94 N.W. 587

DAVID WATERHOUSE, Plaintiff and respondent, v. JOSEPH SCHLITZ BREWING COMPANY,

Defendant and appellant.

South Dakota Supreme Court

Appeal from circuit court, Codington County, SD

Hon. Julian Bennett, Judge,

Affirmed

George W. Case, S. B. Van Buskirk

Attorneys for appellants.

Philo Hall, C. X. Seward

Attorneys for respondent,

Opinion filed April 25, 1903

HANEY, P. J.

In this action the plaintiff seeks to recover for personal injuries caused by the collapse of a building constructed of “grout,” and known as the “Mulholland Building,” owned by the defendant, in the city of Watertown. Judgment having been rendered in favor of the plaintiff, and a new trial refused, the defendant appealed.

The contention of the defendant, as stated by counsel, is

“that inasmuch as the pleadings and evidence show conclusively that said defendant. had nothing to do with construction of the building; that it was a corporation existing under the laws of the state of Wisconsin; that it has its office and place of business in the city of Milwaukee, Wisconsin; that it purchased the building in the year 1885; that it caused a suitable and proper examination of said building to be made at that time, and upon such examination the building was found to be a good, strong, and substantial building, and that none of its officers have ever been here in the city of Watertown; and that it never had any notice or knowledge that said building was dangerous or unsafe—that in that case the plaintiff cannot recover in this action unless the plaintiff was on the sidewalk and on the street of the city at time the building fell, and was injured by the fall of said building at the time it so fell.”

This contention is clearly untenable. Concerning the precise position of the defendant when the building fell, the evidence is conflicting, and, under the charge of the trial court, the jury was not called upon to determine whether he was on the street, on the defendant’s lot, or in the defendant’s building, when his injuries were received; nor was it necessary to determine his position, as no such issue was raised by the pleadings. The only allegation of the complaint on this subject is that the plaintiff “was lawfully in front of the building,” which is simply denied by the answer. The sufficiency of the complaint cannot be questioned, since on a former appeal it was held that the facts stated therein constituted a cause of action against the defendant. After stating the substantial allegations of the complaint, and the contentions of the parties, this court then used this language:

“Assuming these facts to be true, it would seem to necessarily follow that the defendant would be liable for any injuries resulting to persons rightfully in or about said building, and the fact that the building was leased to and in the possession of a tenant at the time the accident occurred would not relieve the defendant from such liability.”

Waterhouse v. Brewing Co., 48 LRA 157 (1900). Our former decision is the law of this case. Sherman v. Port Huron En. & Th. Co.,(1900); Wright v. Lee,(1897); Tanderup v. Hansen,(1896); St. Croix Lumber Co. v. Mitchell,(1894); Plymouth County Bank v. Gilman, 44 AmStRep 782 (1892). And even though the lease under which the property was occupied as a saloon contained no covenant on the part of the lessor to make repairs, defendant’s contention is untenable. An argument substantially the same as that now presented, regarding the effect to be given to the lease, was advanced by defendant in an action brought against it by a woman whose husband was killed when the plaintiff in this action was injured. In that case the defendant requested the following instruction:

“If you find from the testimony in this action that Berg & Olson rented the premises described in the complaint from the defendant, and that there was no covenant in the lease to repair, on the part of the defendant, then neither Berg & Olson, nor the persons by their permission or at their invitation, could recover for any injury received in consequence of the fall of the building.”

In deciding that the request was properly refused for the reason that it did not correctly state the law, this court said:

“If the building was unsafe and liable to collapse prior to its being leased to Berg & Olson, and the defendant had notice of its dangerous condition, or might, by reasonable care and diligence, have ascertained its condition, it would be liable. Where a' building has become a nuisance, and is leased to a tenant, the owner is liable for any injury that may result from such nuisance to third parties, when such owner has not exercised ordinary care and diligence in discovering its condition.”

Patterson v. Jos. Schlitz Brewing Co.,(1902).

A witness on behalf of the plaintiff was asked on direct examination if he knew the kind of materials that should be used in these grout buildings, to which defendant objected as “incompetent, irrelevant, and immaterial,” and which objection was overruled. Error cannot be predicated upon this ruling, because the question was not answered; and, moreover, it was a proper preliminary inquiry for the purpose of qualifying the witness as an expert.

The same witness having testified, without objection, that he had constructed certain grout buildings, was asked to state what proportion of lime and gravel he used in the construction of such buildings. This was objected to as ...