11 Mo. App. 246 | Mo. Ct. App. | 1881
delivered the opinion of the court.
The only question we have to consider in this case is, whether the petition states a cause of action. It states that, at the dates hereinafter mentioned, the plaintiffs were the lessees and occupiers of a store-room in which they had a stock of goods, and that the defendant was the owner of an adjoining building five stories high. It then continues as follows: —
“ Plaintiffs further state that on or about the fourteenth day of November, 1877, the interior .and combustible portion of said building, owned by defendant as aforesaid, were destroyed by fire, and certain interior and exterior brick walls and chimneys were left standing; that from the time of said fire until the seventeenth day of November, 1877, said walls and chimneys were, as the defendant then and there well knew, in an unsafe, insecure, and dangerous condition, and were a nuisance, and liable at any time to fall over and upon adjoining premises, and cause injury to the person and property of others; that the defendant was then and there in possession of said premises and the said walls and chimneys situated thereon, and had full and exclusive control and direction thereof; that on or about the seventeenth day of November, 1877, said defendant allowed and permitted certain persons to enter upon said premises for the purpose of removing said walls and chimneys and abating said nuisance, and said persons tore down*248 said walls, and in so doing negligently and unskilfully pushed, or threw, or caused the same or portions thereof to fall over and upon the said house occupied by the said plaintiffs as aforesaid, thereby crushing and destroying said house and covering the said chattels contained therein with the debris thereof, and of the said walls and chimneys ; that the defendant knowingly and negligently suffered and permitted said persons to go upon his said premises and tear down said walls and chimneys, and that their action enured to his benefit, and that it was the duty of the said defendant to abate said nuisance and remove said walls and chimneys in a proper manner and without detriment to another, i^nd plaintiffs aver that said defendant either knew, or had good reason to know, that said persons who undertook to tear down said walls intended to adopt, and did adopt, an improper, unsafe, and dangerous method of removing and tearing down the same, and, nevertheless, said defendant, wholly neglecting his duty as the owner of said premises as aforesaid, knowingly permitted said work to be proceeded with, with the result aforesaid.”
It is clear that this petition states a good cause of action. Every owner of fixed property is under a general duty to so use his property as not to create a nuisance, or work a trespass upon the property qf adjacent owners, or endanger persons passing upon the adjacent highway, "or who may come upon his premises lawfully or by his invitation, express or implied. There are some cases in which this duty may be discharged by delegating it to others, as to a tenant, or to a contractor employed at work upon the premises. But these are exceptions to the general I'ule; and it follows that, if a petition counts upon a breach of this general duty of a proprietor, it will be good upon demurrer, and if the injury arose in any of the exceptional cases, that will be matter of defence to set up by way of answer.
Where a proprietor undertakes to do something upon his land which, however necessary to be done, is in its nature
These cases are sufficient to illustrate the general rule. There is nothing in the decisions of our supreme court, or of this court, with reference to the non-liability of a proprietor for the negligence of an independent contractor, which necessarily impugns this rule. The plaintiffs’ petition brings their case fairly within it. It avers a duty on the part of the proprietor to remove the walls and chimneys which, left standing, were a dangerous-nuisance. It avers that he suffered certain persons to go upon his premises for this purpose ; that die knew, or had good reason to know, that they intended to adopt a dangerous method for the accomplishment of this purpose; and it finally asserts that they did adopt this method, in consequence of which the walls were thrown upon the house occupied by the plaintiffs, crushing it in, and injuring the goods of the plaintiffs. It is, therefore, good within the rule of the foregoing cases, both in the aspect of trespass and of negligence. If the defendant knew that what these persons were about to
The judgment is reversed and the cause remanded.