Mayor of Vicksburg v. Holmes

63 So. 454 | Miss. | 1913

Cook, J.,

delivered the opinion of the court.

In changing the grade of certain streets in the city of Vicksburg, appellant undertook to raise the church building of the King David Baptist Church, a colored organization, to the new grade, and employed a contractor to do the necessary work. The bill of complaint alleges that “on account of the insufficient number and size of the pillars put under the said building, and the poor material used therein, and the negligent and imperfect workmanship, the said church was not safe- for the purposes for which it was intended; that, in addition to the above, the said pillars were set upon the surface of the ground, so that they were likely to be undermined and weakened by water flowing nnder said church, all of which should, and could, by the exercise of ordinary care and diligence, have been known to said defendants.” It is further alleged that after the building had been turned over to its owners, and “when a funeral was being held from said church, the floor thereof gave way, and complainants, along with a number of others, were precipitated to the ground, some twelve or fifteen feet below, with a mass of broken timbers, benches, hot stoves, and humanity, and were bruised and maimed,” etc. The complainants were strangers to the contract between the city and the King .David Baptist Church, and when the collapse of the building occurred they were attendants at the funeral obsequies of one deceased. Te city demurred to the bill of complaint, which demurrer was overruled, and the city prosecuted this appeal.

Appellant does not challenge the jurisdiction of the court to try this cause. We will consider only one of the grounds of the demurrer, viz.: “(2) That under the facts stated and alleged in said bill, complainants are not entitled to the relief sought for, or any relief.” “The general rule is that, after the contractor has turned the work over, and it has been accepted by the proprietor, the contractor incurs no further liability to third parties by reason of the condition of the work; but the responsibility, if any, for maintaining or using it in its defective condition, is shifted to the proprietor.” 32 L. R. A. (N. S.) 969.

Before the city can be held liable to complainants, it must be shown that there was some element of deceit, or concealment of the dangerous instrumentality. It is not sufficient to allege negligent construction. It must also be alleged that there was a concealment of this dangerous condition when the building was turned over to its own ers and accepted by them. We think the bill of complaint may reasonably be construed to mean that the negligent construction and poor material used in the building was obvious, and that the owner accepted the work without demur ; and, if this be true, it follows that the owner knew of the defect when it accepted the. building. It must be shown that the owner was unaware of the danger, and it must be shown that the city, or its agent, concealed the defective material and workmanship. For a collation of the authorities, we cite Thornton v. Dow, 60 Wash. 622, 111 Pac. 899, 32 L. R. A. (N. S.) 968, and notes; O’Brien v. American Bridge Co., 110 Minn. 364, 125 N. W. 1012, 32 L. R. A. (N. S.) 980, 136 Am. St. 503.

The demurrer should have been sustained.

Reversed and remanded.