189 Iowa 194 | Iowa | 1919
I. The defendant railway company in 1912 became the owner of three buildings in the city of Burlington, known as Nos. 106, 108, and 110, Jefferson Street. Defendant thereafter orally leased No. 110 to plaintiff, who had for some time been in possession thereof as a tenant. Plaintiff paid his rent monthly, and occupied the first floor for business purposes, and the second as a residence. The building at 106 was partially destroyed by fire, and, in 1914, defendant entered into a contract with one Gilbert to wreck this building; but, after a portion of the building had been removed, the contractor discovered that it could not be completed without wrecking the building at No. 108, whereupon defendant contracted with Gilbert to wreck both buildings. The buildings were wrecked without other compensation than the salvage received therefrom. The building in question was a very old three-story brick, resting upon an independent stone foundation, and was erected long prior to the adjoining buildings. The joist in building No. 108 was inserted in openings made for that purpose in the east wall of the leased building, but the lower joist rested upon the stone foundation. There was a cellar under the building at Nos. 108 and 110, the latter being about 18 inches deeper than the former.
Plaintiff was engaged in the bird and goldfish business, and kept a small stock of glassware. On April 18, 1916, a portion of the foundation of the east wall of the building in question gave way, and on the following day collapsed, resulting in serious loss to plaintiff’s stock of birds, fish, and glassware.
The negligence charged in plaintiff’s petition is, in substance, as follows: That, in removing said adjoining buildings, the east wall of the leased building was greatly weakened, and the support received from the adjoining buildings removed; that the work óf removing said buildings was carelessly and negligently done, and the building occupied by plaintiff rendered dangerous and unsafe; that the said
Counsel for appellants rest their contention upon two propositions: (a) That the oral lease under which plaintiff held possession of the building did not require defendant to repair the building or maintain it in a safe or suitable condition for occupancy; and (b) that Gilbert was an independent contractor, for whose negligence, if any is shown in the removal of the adjoining buildings, resulting in injury to the building occupied by plaintiff, defendant would not*be liable.
The court in McMillin v. Staples, 36 Iowa 532, held that the owner of a lot adjoining the leased premises had a right to excavate the same for the purpose of erecting another building, and was not liable to the tenant for the loss of potatoes in the basement of the leased building by freezing, due to the exposure thereof to cold on account of the excavation; but the court specifically held:
“If such damages resulted from the negligent manner of doing the excavation or building, which ordinary care would have avoided, then the liability would arise.”
Ward v. Fagin, 101 Mo. 669 (10 L. R. A. 147) ; Doupe v. Genin, 45 N. Y. 119; Sherwood v. Seaman, 2 Bosworth (N. Y.) 127; Brewster v. DeFremery, 33 Cal. 341, cited by counsel for appellant, were all decided upon the proposition that the landlord had not covenanted to repair or maintain the building in a suitable condition for use. No negligence against the landlord was charged. The holding of the court of Common Pleas in Rotter v. Goerlitz, 16 Daly (N. Y.) 484, is opposed to the conclusion announced herein; but none of the other cases cited by counsel are inconsistent therewith.
The court instructed the jury that, if it found from the evidence that the collapse of the Avail avus not caused by the removal of the adjoining buildings, or if same Avas caused by the action of the elements alone, unaffected and not contributed to by the removal of the adjacent building,
The receivership is admitted, but the purpose thereof is not shown; and there is nothing in the joint answer of defendants, or in the evidence offered, to indicate that it was not for the general purpose of managing and controlling the property of the defendant railroad company, and of operating its lines of railway. One of the agents employed in the railroad office signed a written notice that was served upon plaintiff on April 13th, saying that the building was unsafe, and warning him to immediately remove therefrom.
The jury may have found from the evidence that the defendant receiver was negligent in failing to brace the wall after notice that the foundation was giving way. y- — TitheNmatters argued by counsel do not present cause ! fori reversal, and need not be discussed. Since we find no ¡reversible error in the record, the judgment of the court ■AelowJ-S — Affirmed.