Opinion
No. 36331.
March 24, 1947.
1. PARTY WALLS.
In action for damages sustained when party wall collapsed and defendant's building fell on first floor of adjoining building occupied by plaintiff, testimony of plaintiff's witnesses that party wall wavered, crumbled and collapsed without warning explosion was sufficient to withstand defendant's motion to exclude plaintiff's evidence.
2. PARTY WALLS.
In action for damages sustained when party wall collapsed and defendant's building fell on first floor of adjoining building occupied by plaintiff, evidence whether defendant reasonably inspected his building and whether explosion preceded collapse was for jury.
3. PARTY WALLS.
In action for damages sustained when party wall collapsed and defendant's building fell on first floor of adjoining building occupied by plaintiff, jury must be correctly apprised of nature and extent of burdens respectively placed upon plaintiff and defendant.
4. PARTY WALLS.
In action for damages sustained when party wall collapsed and defendant's building fell on first floor of adjoining building occupied by plaintiff, plaintiff's requested instructions advising jury of fact and weight of presumption implicit in res ipsa loquitur doctrine were properly refused, since such presumptions were for judge and not jury, and their function ceased when presumptions made a prima facie case, and case went to jury free of the incident that the inferences thereby created had any force other than that which the jury might by their own reasoning attach to them.
5. PARTY WALLS.
Instruction to find for defendant unless defendant knew or should have known that his building was dangerous and party wall likely to collapse was not error as casting undue burden on plaintiff, since plaintiff's burden, whether or not lightened by a presumption, remained throughout to show causal negligence of defendant.
6. NEGLIGENCE.
The rules of liability for negligence are not changed by res ipsa loquitur doctrine.
7. PARTY WALLS.
In action for damages sustained when party wall collapsed and defendant's building fell on first floor of adjoining building occupied by plaintiff, refusal to instruct to find for plaintiff unless explosion caused without fault of defendant resulted in collapse of building, was not error.
8. NEGLIGENCE.
In tort action for damages plea of general issue was sufficient to put plaintiff to proof of defendant's negligence, and doctrine of res ipsa loquitur did not convert such plea into an affirmative defense.
9. PARTY WALLS.
Defendant's special plea that collapse of party wall was proximate result of explosion of unknown origin and without fault of defendant in the party wall placed no burden upon plaintiff until the defendant affirmatively established such plea.
10. PARTY WALLS.
Instructions to find for defendant if explosion in party wall caused collapse of wall was error, since explosion would not exonerate defendant unless explosion was without fault of defendant and was sole cause of collapse.
11. APPEAL AND ERROR.
The framing of instructions is duty of counsel and trial judge and not the Supreme Court.
12. PARTY WALLS.
In action for damages sustained when party wall collapsed and defendant's building fell on first floor of adjoining building occupied by plaintiff, plaintiff was entitled to instruction that proper and adequate proof of collapse placed some burden on defendant, the extent of which at most was merely to adjust the scales to equipoise but not to preponderance.
13. PARTY WALLS.
In action for damages sustained when party wall collapsed and defendant's building fell on first floor of adjoining building occupied by plaintiff, jury should be given instruction which recognized rights and responsibilities of plaintiff and defendant and which fixed and maintained initial burden of preponderant proof upon plaintiff, yet advised jury that burden was placed on defendant to make some explanation, which taken in connection with fact of collapse and defendant's rebuttal and plaintiff's answer thereto would depress plaintiff's proof below a preponderance, and that such burden devolved upon defendant upon mere proof of collapse.
14. LANDLORD AND TENANT.
In action for damages sustained when party wall collapsed and defendant's building fell on first floor of adjoining building leased to plaintiff, instructions drawn on theory of joint responsibility of plaintiff as being in privity with his landlord were properly refused.
APPEAL from the circuit court of Warren county. HON. R.B. ANDERSON, J.
Vollor, Teller Biedenharn and R.M. Kelly, all of Vicksburg, for appellant.
The doctrine of res ipsa loquitur is controlling in this case.
Sanders et ux v. Smith et al., 200 Miss. 551, 27 So.2d 889; Alabama V.R. Co. v. Groome, 97 Miss. 201, 52 So. 703; Waddle v. Sutherland, 156 Miss. 540, 126 So. 201; Mississippi Power Light Co. v. Sumner Gin Co., 156 Miss. 830, 127 So. 284; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Yazoo M.V.R. Co. v. Skaggs, 181 Miss. 150, 179 So. 274; Aponaug Mfg. Co. v. Carroll, 183 Miss. 793, 184 So. 63; Hiller et al., v. Wiley, 192 Miss. 488, 6 So.2d 317; Hoffman v. Kuhn, 57 Miss. 746; Scott v. London St. Catherine Docks Co., 3 H. C. 596, 13 W.R. 410, 11 Jur. (N.S.) 204, 34 L.J. Exch. 220, 13 L.T. 148, 159 Eng. Rep. 665; Richardson, Law of Evidence (2 Ed.), Sec. 86; 32 Am. Jur. 654-655, Sec. 768; 40 Am. Jur. 516, Sec. 45; Mark Shain, Res Ipsa Loquitur, Presumptions and Burden of Proof, pp. 63-66, 260, 480.
James D. Thames and John H. Culkin, both of Vicksburg, for appellee.
The general rule that every person must so use his own property as not to injure others is applicable to the erection and maintenance of buildings upon one's premises. The building he erects must not be dangerous by reason of the material used in, or the manner of, its construction. An owner is not an insurer against accident or injury arising from the condition of a building upon his premises and is not liable for injuries occasioned by latent defects which are either concealed in defective workmanship or are incidental to the ordinary wear and tear of houses and of which he had no notice; yet so far as he can by ordinary care, he is bound so to construct and maintain his building that it will not by any insecurity or insufficiency, for the purpose for which it is used, injure any person rightfully in, around or passing it at the owner's invitation, express or implied, or so that it will not cause injury to adjoining owners or those using the adjacent street or highway.
9 Am. Jur. 222, 223, Secs. 28, 29.
The owner of a building is bound to exercise ordinary and reasonable care so as to maintain it that neither the building nor any parts thereof will fall or collapse and injure persons who are rightfully in or around such building, an adjoining premises, or upon the street or highway, or do damage to adjacent property. If he fails in such duty, he may be held liable in damages. He cannot escape liability merely on the ground that the structure was built by an independent contractor, that he did not have actual knowledge that the building was unsafe, or that it had stood for a number of years without falling. A building owner is not, however, an insurer against the fall or collapse of his building, but he is liable only where negligence on his part is shown. If the cause of its fall is a latent or hidden defect which could not have been discovered by the exercise of reasonable care in inspecting the building, the owner cannot be held liable, unless a duty to exercise a higher degree of care is imposed upon him by statute. Nor can he be held liable for injuries resulting from the fall or collapse of his building caused by an extraordinary strain for which he is not at fault, by a superior force over which he has no control, or by an act of a third person, holding no relation to him, done without his knowledge or consent.
9 Am. Jur. 222, 223, Secs. 28, 29.
It is not every act resulting in injury to another that subjects the person doing the act to liability for the injury and damage resulting therefrom. The acts must be of such a character that the person doing it should reasonably anticipate that some injury to another will probably result therefrom.
D'Antoni v. Albritton, 156 Miss. 758, 126 So. 836.
In order that a person, doing a particular act which results in injury to another, shall be liable therefor, the acts must have been of such character and done in such situation that the person doing it should have reasonably anticipated that some injury to another will probably result therefrom. Actionable fault on the part of a defendant must be predicated on action or nonaction accompanied by knowledge actual or implied of the facts which make the result of his conduct not only a probable result but a result also which he should, in view of these facts, have reasonably anticipated.
Williams v. Lumpkin, 169 Miss. 146, 152 So. 842.
The general rule in actions of tort is that mere proof of the injury complained of raises no presumption of negligence; but there is a class of cases where the circumstances of the occurrence which caused the injury are of such character as to give grounds for the reasonable inference that had due care been employed by the party charged with such care, the thing that happened amiss would not have happened. In such a case the thing that happened speaks for itself; if there is nothing to explain or rebut, the inference that arises from the way in which the thing happened, it may fairly be found to have been occasioned by negligence. Res ipsa loquitur means that the facts of the occurrence warrant the inference of negligence; not that they compel such an inference, but that they furnish circumstantial evidence of negligence where direct evidence of it may be lacking. "But it is evidence to be weighed, not necessarily to be accepted as sufficient; that they call for explanation or rebuttal, not necessarily that they require it; that they make a case to be decided by the jury, not that they forestall the verdict. Res ipsa loquitur, where it applies, does not convert the defendant's general issue into an affirmative defense. When all the evidence is in, the question for the jury is whether the preponderance is with the plaintiff."
Sanders v. Smith, 200 Miss. 551, 27 So.2d 889; Waddell v. Sutherland, 156 Miss. 540, 126 So. 201.
The issues submitted by the trial court to the trial jury for its determination were made by specific proof on specific charges of negligence and a specific explanation on the part of the defendant. This being true, the doctrine of res ipsa loquitur has no application here.
Alabama V.R. Co. v. Groome, 97 Miss. 201, 52 So. 703; Waddle v. Sutherland, supra; Mississippi Power Light Co. v. Sumner Gin Co., 153 Miss. 830, 127 So. 284; Columbus G.R. Co. v. Coleman, 172 Miss. 514, 160 So. 277; J.C. Penney Co. v. Evans, 172 Miss. 900, 160 So. 779; Daniel v. Jackson Infirmary, 173 Miss. 832, 163 So. 447; Yazoo M.V.R. Co. v. Skaggs, 181. Miss. 150, 179 So. 274; Aponaug Mfg. Co. v. Carroll, 183 Miss. 793, 184 So. 63.
Argued orally by Landman Teller, for appellant, and by James D. Thames and John Culkin, for appellee.
Appellant is a tenant of the lower floor of a brick building in the City of Vicksburg. Appellee owns and occupies an adjoining three-story brick building. On April 6, 1944, appellee's building collapsed and fell upon the building of appellant causing considerable damage. Plaintiff sued upon four counts, alleging faulty and negligent construction and maintenance, and presaging reliance upon the doctrine of res ipsa loquitur. Defendant, in addition to the general issue, filed special pleas setting up the fact of an explosion without fault and the privity of plaintiff with his landlord, with consequent responsibility in maintenance of the party wall whose collapse caused the damage. From a verdict and judgment for the defendant, the plaintiff appeals.
The errors assigned include refusal of a peremptory instruction for plaintiff, and errors in other instructions granted and refused.
Testimony for the plaintiff showed that the building was about a century old; that the mortar had become inert and powdery; that it was possible to scrape this mortar from between the joints of the bricks with a stick or to thrust it completely through the walls; that it was improperly constructed even by structural standards applicable at the time of its erection.
Among plaintiff's witnesses were several who, from points of vantage in or atop nearby buildings, saw the walls of the Brown building waver perceptibly, then crumble and collapse. They heard no precedent detonation nor explosion. Those inside plaintiff's store heard first a "scratching noise" and noticed that the display cases along the wall were leaning outward. There was time to make some effort to adjust or secure them before the crash came, projecting a great mass of bricks and other materials about them. These witnesses likewise heard no warning explosion. This testimony was correctly held sufficient to withstand defendant's motion to exclude plaintiff's evidence.
The defendant introduced some evidence of a loud "noise like a rumbling," "a rumbling explosion," or "rumbling and roaring." Others define the noise as an "explosion." Some fixed it before, and a few after, the noise of crumbling. A few heard two separate but closely timed "explosions." Two witnesses expressed opinions based upon subsequent inspection, that the collapse was caused by an explosion of some sort near a chimney built into the party wall. One of these latter witnesses insisted that there was a distinct detonation just prior to the collapse. There was some evidence of prior inspection of the building, yet much of this testimony was concerned with the repair of minor deficiencies.
An expression of our opinion that the theory of a precedent explosion needs more ample corroboration is not decisive since we have concluded that this issue, and the issue of reasonable inspection, were properly submitted to the jury.
In this sort of case, it is highly important that the jury be correctly apprised of the nature and extent of the burdens respectively placed upon the plaintiff and the defendant.
The instructions requested by plaintiff which advised the jury of the fact and weight of the presumption implicit in the doctrine of res ipsa loquitur were properly refused. Presumptions are for the judge and not the jury. Once they have served the purpose of making a prima facie case, their function ceases and the case goes to the jury free of the incident that the inferences thereby created have any force other than that which the jury may by their own reasoning attach to them.
In New Orleans G.N.R.R. Co. v. Walden, 160 Miss. 102, 133 So. 241, prior decisions upon the use of presumptions were thoroughly canvassed and the impropriety of their use in instructions demonstrated. The opinion therein was written by the same judge who wrote the opinion in Alabama V. Railway Co. v. Groome, 97 Miss. 201, 52 So. 703, 704, wherein such an instruction embodying the stated doctrine was questioned by the comment "the form of the instruction, however, has given us considerable difficulty," especially referring to its effect as placing an affirmative burden upon the defendant. It was construed as placing no undue burden on the defendant, especially when taken in connection with other instructions. Later decisions during the interlude between the Groome and Walden cases vindicated the propriety of establishing a clearer rule even at the expense of overruling several in consistent cases. Later cases are Natchez Coca-Cola Bottling Co. v. Watson, 160 Miss. 173, 133 So. 677; White v. Weitz, 169 Miss. 102, 152 So. 484; Bridges v. State, 197 Miss. 527, 19 So.2d 738. See also Hayne, New Trials, p. 335 et seq.; Vol. XVII Miss. L. Journal, pp. 1, 16; A.L. Inst., Model Code of Evidence, pp. 43, 704. Compare Crowell v. State, 195 Miss. 427, 15 So.2d 508.
The following instruction was given for the defendant: "The Court instructs the jury for the Defendant that, unless you believe from a preponderance of the evidence in this case that the Defendant actually knew, or by the exercise of reasonable care, should have known, that his building was dangerous and likely to collapse, then it is your sworn duty to find your verdict for the Defendant."
Appellant assigns for error that this casts an undue burden upon plaintiff. We do not think so. The burden of plaintiff, whether lightened by a presumption or not, remains throughout to show causal negligence of the defendant. The rules of liability are not changed by the doctrine. Gulfport Creosoting Co. v. White, 171 Miss. 127, 157 So. 86.
The following instruction was refused the plaintiff: "The Court instructs the Jury for the Plaintiff that unless you find and believe from the evidence before you that there was an explosion caused without fault of the Defendant and that this explosion resulted in the fall and collapse of the Brown building and the damages to the Plaintiff then it will be your sworn duty to return your verdict for the Plaintiff."
We find no error here. The instruction stakes defendant's liability solely upon the explosion theory, and assumes that there was no factual issue of collapse from structural causes due to negligence in inspection. Two other similar instructions embodied the same error.
Other instructions granted and refused have been examined without detection of error. Our greatest concern, however, is provoked by the following instruction granted to defendant: "The Court instructs the jury for the Defendant, that if you believe from the evidence in this case, an explosion occurred in the party wall, or the wall common to the Brown and Schwartz buildings, and as a result thereof, the said wall collapsed, then it will be your sworn duty to find your verdict for the Defendant."
The theory of an explosion was pleaded as an affirmative defense. The plea of general issue was sufficient to put plaintiff to proof of defendant's negligence, and the doctrine of res ipsa loquitur does not convert such plea into an affirmative defense. Sanders v. Smith, 200 Miss. 551, 27 So.2d 889, 891. Yet, the mere fact of an explosion as a causative factor would not per se meet the defendant's burden. It is conceivable that such occurrence itself might in fact inject a new basis for an inference of negligence under the stated doctrine. Moreover, unless it was without fault of defendant, and was the sole cause of the collapse, it would not exonerate the defendant.
The special plea recognized this in its assertion that such "collapse of the party wall as alleged in the declaration was the proximate result of an explosion which occurred in the said party wall, which said explosion was of unknown origin, and which occurred through no fault of the said defendant." This plea placed no burden upon plaintiff until the defendant had established it affirmatively.
The instruction authorized the jury to resolve the question of liability upon the sole issue of explosion vel non, and to rescue defendant in midchannel after he had fled Scylla and before he had achieved the perilous asylum of Charybdis. We are compeled to declare error here.
It would be amiss if, subjecting the parties to a new trial prolonged as it may be, we did not clarify the relative rights of the parties in utilizing the leverage of presumed negligence on the one hand and the extent of defendant's resultant burden on the other. The parties have the right to have the jury instructed upon the incidence of the burdens of proof.
We should not, and do not, prescribe forms of instructions. While the inference of negligence from an unexplained collapse is sufficient for the trained judge who accepts its force as adequate to the establishment of a prima facie case, the jurors are aware of no such standardized formula. It is true that the inferences implicit in the doctrine remain available as such, and are commended to the reason and judgment of the jury as being logically relevant, since the legal presumption is genuine and not arbitrary nor spurious. Yet, the jurors, left solely to their own resources of reason and logic and admonished that the applicable legal principles are embodied ied in the instructions, are apt to charge against a plaintiff any failure fully to explain the catastrophe by direct proof and to withhold the very inferences which the doctrine was designed to supply. The plaintiff is therefore entitled to an instruction stating, in substance, that proper and adequate proof of collapse places some burden upon the defendant. The extent of this defensive burden is at most merely to adjust the scales to equipoise but not to preponderance. As stated, a mere general issue plea imposes no greater burden than this.
An instruction would recognize the rights and responsibilities of each which fixes and maintains the initial burden of preponderant proof upon the plaintiff, yet advises the jury that a burden, albeit of proceeding, is thereby placed upon the defendant to make some explanation, which taken in connection with the fact of collapse, defendant's rebuttal and plaintiff's answer thereto will depress plaintiff's proof below a preponderance, and that this burden devolves upon the defendant upon mere proof of the collapse. We refer throughout, of coure, to proof upon the issue of negligence vel non.
The task of so framing an instruction as to embody precisely the principle as above stated, and at the same time in language that will not mislead but enlighten the average jury is not an easy one, as may be readily appreciated, but it is a task which belongs to counsel and the presiding judge in the court of original jurisdiction and not to us here, — we review but do not originate.
The instructions drawn upon the theory of a joint responsibility of the plaintiff as being in privity with the landlord were properly refused. Compare Hoffman v. Kuhn, 57 Miss. 746, 34 Am. Rep. 491; Hiller v. Wiley, 192 Miss. 488, 6 So.2d 317.
Reversed and remanded.