240 F. 387 | 5th Cir. | 1917
On the 12th of December, 1914, a store building in the city of Birmingham, Ala., owned by the plaintiff in error (hereinafter x-eferred to as the “defendant”), which adjoined another store building in which the defendant in error (hereinafter referred to as the “plaintiff”) carried on business, was partially destroyed by fire. The fire left standing, without the supports it previously had, a wall adjoining, and extending considerably above, the building occupied by the plaintiff. Two days after the fire, the city building inspector notified the defendant’s agents that the walls of the building were not in good condition and to make the necessary repairs. The defendant employed a reputable building contractor to do all that was considered necessáry to make the walls safe. She also employed a. reputable architect to supervise the contractor’s work. The architect and contractor undertook the tasks for which they, respectively, were employed. No limit was put on the price of the work to be done. The contractor was to be paid, and was paid, the cost of his labor and material and 10 per cent, in addition thereto as his compensation, and the architect was paid for his services a commission on the total cost of the work. On the 21st day of April, 1915, the wall adjoining the plaintiff’s store fell thereon, destroying and injuring property of his therein, and he brought this suit to recover damages so caused. The defendant was not negligent in the selection of the architect and contractor who engaged to comply with her instructions to do- all that was necessary to make the _ wall safe. There was'evidence tending to ^rove
It is insisted that the defendant’s freedom from personal negligence exempted her from the liability asserted against her. The trial court ruled against this contention.
We have been referred to a number of decisions to the effect that the owner is not liable in such a case as the instant one where he was free from personal negligence in the selection of those employed to make damaged structures on his premises reasonably safe. It seems to us that such decisions are inconsistent with the recognition and proper enforcement of the duty of the owner of property so to use it as not to injure another. He is not an insurer against injuries to others due to the faulty condition of a structure on his premises; but he is under a positive duty to keep his property from being a cause of danger to others rightfully on or near to it by reason of any defect in structure or condition of repair which reasonable care and skill can guard against, and liability for injuries resulting from a breach of this duty cannot be shifted by the owner to another selected to act in the former’s stead, and who fails to exercise the requisite care and skill. Lauer v. Palms, 129 Mich. 671, 89 N. W. 694, 58 L. R. A. 67; Ainsworth v. Lakin, supra; Ryder v. Kinsey, 62 Minn. 85, 64 N. W. 94, 34 L. R. A. 557, 54 Am. St. Rep. 623; Marney v. Scott, 1 Q. B. (L. R.) 986; Webb’s Pollock on Torts, 638. A proprietor’s right to the use of his premises is not an absolute one, but is qualified and limited by the right of others to the lawful possession and enjoyment of their property. The continuance of a damaged structure on his property binds him to adopt such precautions as reasonable care and skill
An examination of thé record in the light of the arguments of counsel has led us to the conclusion that it does not show the commission of' any reversible error.
The judgment is affirmed.