Waterhouse v. Joseph Schlitz Brew. Co.

• Decision Date: 18 January 1900
• Citation: 81 N.W. 725,12 S.D. 397
• Parties: DAVID WATERHOUSE, Plaintiff and respondent, v. JOSEPH SCHLITZ BREWING COMPANY, Defendant and appellant.
• Court: South Dakota Supreme Court

12 S.D. 397

81 N.W. 725

48 LRA 157 (1900)

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 Attorneys for appellant. Cheever & Hall Attorneys for respondent. Opinion filed January 18, 1900

CORSON, J.

This is an action by the plaintiff to recover damages for injuries received by him, caused by the falling of a building owned by the defendant. A demurrer was interposed to the complaint on the ground that the same did not state facts sufficient to constitute a cause of action against the defendant, and also that it appears on the face of the said complaint that there is a defect of parties defendant. The demurer was overruled, and from the order overruling the demurrer defendant appeals.

The following are the material allegations in the complaint necessary to be considered in determining as to the correctness of the court’s ruling in overruling the demurrer:

“(3) That on the 21st day of June, 1897, defendant owned, had control of and had for more than ten years immediately prior thereto owned and had control of, a certain grout building, known as the ‘Mulholland Building,’ which was then and there, and for some time prior to said date had been, occupied by a tenant of defendant, and situated on the following described premises in the city of Watertown, county of Codington; … that said building was negligently constructed of improper materials, and in an improper and negligent manner (being what is known as a ‘grout building.’ consisting principally of mortar), and was old, and negligently used and permitted to be used by the defendant as a place where the public were permitted to resort, and was rented by the defendant at the time of its collapse. hereinafter mentioned, for saloon purposes, on a main business street in said city of Watertown; that said building was at all of said times, and particularly on the 21st day of June, 1897, in a dangerous and unsafe condition, by reason of its negligent construction and the negligent use of improper materials in its construction, and was liable at any time, of its own weight, to collapse and injure persons who might be lawfully in or near the same, as defendant well knew, (4) That on the 21st day of June, 1897, while the plaintiff was lawfully in front of said Mulholland Building, above described. the said building, by reason of its said defective and negligent construction, and the negligent and defective materials of which it was constructed, and by reason of the negligence of the defendant in permitting said building to remain and be used as aforesaid, did fall and collapse, and that said building, and a large and heavy mass of timbers and materials out of which it was constructed, did fall upon and greatly injure this plaintiff, without any fault on his part, … ”

It is contended on the part of the appellant that the complaint is defective. in that it fails to charge that the appellant constructed the building, and hence dangerous or injurious structure; and if the injury occurs after the original owner has alienated the property, from a dangerous structure erected by him before alienation, he is not liable, the new owner alone being responsible. 16 Am. & Eng. Enc. Law, 473, 474; Congreve v. Smith, 18 NY 79; Clifford v. Darn, 81 NY 52; Swords v Edgar, 59 NY 28; Davenport v. Ruckman, 37 NY 568; Anderson v. Dickie, 26 How. Prac. 105; Knauss v. Brua, 107 Pa. St. 85; Khron v. Brock, 144 Mass. 516, 11 N.E. 748. The owner of a building...