96 Kan. 118 | Kan. | 1915
The opinion of the court was delivered by
This is an action to recover damages for injury to a stock of goods caused by a falling wall. The plaintiff recovered judgment for $1077.62. The defendant appeals.
The plaintiff for several years prior to the' injury complained of operated a store on property owned by and leased from E. L. Green. The defendant during the same time occupied and owned a building on adj oining property. The buildings were divided by a party wall made of brick. This party wall had been built under a contract between Green and The Mercantile Building Company, the predecessor of the defendant. This contract is as follows:
“This instrument, made this first day of February, A. D. 1902, by and between The Mercantile Building Company, a corporation, of Parsons, Kansas, of one part and E. L. Green and Helen L. Green, his wife,' of the City of Parsons, of the other part, Witnesseth: That the said; The Mercantile Building Company is the owner of lots 8, 9, 10 and 11, in block 42, in the City of Parsons, Kansas, and said E. L. Green is the owner of lot 7, in said block 42, in said City of Parsons. The said The Mercantile Building Company has erected on it a two-story brick and stone building, the East wall of which building is of stone two feet thick, as high as floor of first story here footing course of proper width, and the first and second stories of said east wall of said building are of brick 18 inches thick; said wall has by agreement of said Mercantile Building Company and said E. L. Green, been constructed on such a line that one half of the width thereof rests on said lot 7 owned by said Green, and the other half on said lot 8 owned by said Mercantile Company.
“The said Green has erected a building on his said lot 7 and utilized a portion of said wall above mentioned and has paid the said The Mercantile Building Company in full for such amount of said wall utilized by him as rests on his said lot 7 and it is agreed that if at any time said E. L. Green, his heir or assigns, desires to extend his said building and utilize any further portion of said wall erected by said Mercantile Building Company as aforesaid on the line between said lots 7 and 8, the said Green, his heirs or assigns, shall and may use said wall above referred to and shall pay to the said The Mercantile Building Company,*120 its successors, or assigns, one-half the cost of the construction of such amount of said wall referred to as is used by the owner of said lot 7 for the purpose of extending or adding to said building, erected on said lot 7, the amount so to be paid to become due and payable upon the completion of the extension or additions to said building on said lot 7 and such amount when so due shall be and become a lien upon said lot 7, and upon failure of the owner of said lot to pay the value of the additional wall used as aforesaid, the amount may be recovered in any court of competent jurisdiction by an action therefor and to foreclose said lien.
“In case of the destruction of said party wall by fire or any other cause, either of the parties hereto, their successors, heirs or assigns may reconstruct the same and in case same is utilized by the parties hereto or their successors, heirs or assigns they shall each pay one-half of the cost of the same as hereinbefore provided.
“The covenants and conditions of this argeement shall be construed as covenants .running with the lien [land?] and shall be binding on the parties hereto, their successors, heirs and assigns, forever, and shall apply to and include the maintaining the said party wall.”
The defendant’s building was a two-story building covering four lots. Each building was 150 feet long. The front 104 feet of Green's building was two stories high,.the rear 46 feet being one story high. On April 29, 1909, the defendant’s building was entirely destroyed by fire. While this fire was in progress an explosion of gas occurred in Green’s building, then occupied by the plaintiff, which greatly damaged it. There were explosions of gasoline and chemicals in the defendant’s building. Green repaired his building. The defendant did not rebuild. That part of the party wall immediately above the one-story part of the Green building was left standing without support or braces. On May 10, 1912, a severe windstorm occurred in Parsons, and during this storm this part of the wall was blown down. It fell on the one-story part of the Green building, crushing it and causing damage to the plaintiff’s goods, for which this action was brought. The storm was a severe one, breaking down some trees and the limbs off of others, blowing out windows, blowing down signs, stopping street-car traffic, and unroofing some of the buildings in the city.
Further argument is that the allegation of the answer, that the injury was caused by an act of God, is not inconsistent with the petition and therefore is not denied by the reply. We do not agree with the defendant in this contention. If the petition states a cause of action, and this part of the answer states a defense thereto, such answer, so far as it states a defense, is inconsistent with the allegations of the petition. On the motion for judgment the petition and reply should be liberally construed, and we must hold that a reply which denies all the allegations of the answer inconsistent with the petition puts in issue the defenses set up in the answer, unless otherwise admitted.
“Each case must depend, to a great extent, upon its own facts and circumstances, and upon the discretion of the court; the rule being that the best evidence of which the case, in its nature, is susceptible, must be produced.” (p. 529.)
(See, also, 17 Cyc. 468.)
There was no error in the admission of this evidence, under the circumstances.
“A failure to use ordinary care to guard against the falling of a wall injured by fire' renders the owner thereof liable for injuries caused thereby to adjoining property.” (1 C. J. 1211.)
One of the headnotes to Beidler v. King, 209 Ill. 302, 70 N. E. 763, in 101 Am. St. Rep. 246, is as follows:
“A part owner of a party-wall who negligently permits it to stand after its partial destruction and weakening by fire is liable to another part owner who is using part of the wall for damages resulting to the latter from a falling of another portion of the wall in which he has no interest and is not using.”
(See, also, Sessengut, Administratrix, v. Posey, 67 Ind. 408, 33 Am. Rep. 98; The City of Anderson et al. v. East, 117 Ind. 126, 19 N. E. 726, 2 L. R. A. 712, 10 Am. St. Rep. 35; Glover v. Mersman, 4 Mo. App. 90; Teepen v. Taylor, 141 Mo. App. 282, 124 S. W. 1062; 30 Cyc. 791.)
The judgment is affirmed.