Waterhouse v. Jos. Schlitz Brewing Co.
94 N.W. 587
S.D.
1903
Check Treatment
Haney, P. J.

In this action the plaintiff seeks to recover for personal injuries caused by the collapse of a building constructed of “grout,” and known as the “Mulholland Building,” owned by the defendant, in the city of Watertown. Judgment having been rendered in favor of the plaintiff, and a new trial refused, the defendant appealed.

The contention of the defendant, as stated by counsel, is “that inasmuch as the pleadings and evidence show conclusively that said defendant had nothing to do with construction of the building; that it was a corporation existing under the laws of the state of Wisconsin; that it has its office and place of business in the city of Milwaukee, Wisconsin; that it purchased the building in the year 1885; that it caused a suitable and proper examination of said building to be made at that time, and upon such examination the building was found tobe a good, strong, and substantial building, and that none of its officers *597have ever been here in the city of Watertown; and that it never had any notice or knowledge that said building was dangerous or unsafe — that in that case the plaintiff cannot recover in this action unless the plaintiff was on the sidewalk and on the street of the city at time the building fell, and was injured by the fall of said building at the time it so fell.” This contention is clearly untenable. Concerning the precise position of the defendant when the building fell, the evidence is conflicting, and, under the charge of the trial court, the jury was not called upon to determine whether he was on the street, on the defendant’s lot, or in the defendant’s building, when his injuries were received; nor was it necessary to determine his position, as no such issue was raised by the pleadings. The only allegation of the complaint on this subject is that the plaintiff “was lawfully in front of the building,” which is simply denied by the answer. The sufficiency of the complaint cannot be questioned, since on a former appeal it was held that the facts stated therein constituted a cause of action against the defendant. After, stating the substantial allegations of the complaint, and the contentions of the parties, this court then used this language: “Assuming these facts to be true, it would seem to necessarily follow that the defendant would be liable for any injuries resulting to persons rightfully in or about said building, and the fact that the building was leased to and in the possession of a tenant at the time the accident occurred would not relieve the defendant from such liability.” Waterhouse v. Brewing Co., 12 S. D. 397, 81 N. W. 725, 48 L. R. A. 157. Our former decision is the law of this case. Sherman v. Port Huron En. & Th. Co., 13 S. D. 95, 82 N. W. 413; Wright v. Lee, 10 S. D. 263, 72 N. W. 895; Tander*598up v. Hansen, 8 S. D. 375, 66 N. W. 1073; Lumber Co. v. Mitchell, 4 S. D. 487, 57 N. W. 236; Bank v. Gilman, 3 S. D. 170, 52 N. W. 869, 44 Am. St. Rep. 782. And even though the lease under which the property was occupied as a saloon contained no covenant on the part oí the lessor to make repairs, defendant’s contention is untenable. An argument substantially the same as that now presented, regarding the effect to be given to the lease, was advanced by defendant in an action brought against it by a woman whose husband was killed when the plaintiff in this action was' injured. In that case the defendant requested the following instruction: “If you find from the testimony in this action that Berg & Olson rented the premises described in the complaint from the defendant, and that there was no covenant in the lease to repair, on the part of the defendant, then neither Berg & Oison, nor the persons by their permission or at their invitation, could recover for any injury received in consequence of the fall of the building.” In deciding that the request was properly refused for the reason that it did not correctly state the law, this court said: “If the building was unsafe and liable to collapse prior to its being leased to Berg & Olson, and the defendant had notice of its dangerous condition, or might, by reasonable care and diligence, have ascertained its condition, it would be liable. Where a building has become a nuisance, and is leased to a tenant, the owner is liable for any injury that may result from such nuisance to third parties, when such owner has not exercised ordinary care and diligence in discovering its condition.” Patterson v, Brewing Co. (S. D.) 91 N. W. 336.

A witness on behalf of the plaintiff was asked on direct examination if he knew the kind of materials that should be *599used in these grout buildings, to which defendant objected as “incompetent, irrelevant, and immaterial,” and which objection was overruled. Error cannot be predicated upon this ruling, because the question was not answered; and, moreover, it was a proper preliminary inquiry for the purpose of qualifying the witness as an expert.

The same witness having testified, without objection, -that he had constructed certain grout buildings, was asked to state what proportion of lime and gravel he used in the construction of such buildings.’ This was objected to as “incompetent, irrelevant, and immaterial.” The objection was overruled, and the witness answered: “Now, that would depend entirely upon the coarseness of the gravel and sand. The coarser the gravel and the sand, the less lime it would take. If you had good lime, one in twelve would do it. By that I mean one part of unslacked lime to twelve of gravel or sand. The lime is put in to cement the sand and gravel together. If you use entirely gravel, sand, and lime, I should say that there should be cement used. If it was on a rock foundation, there need not be much cement used. I do not know if thére was a rock foundation in the Mulholland building. There might have been some stone in the foundation in the bottom; but, aside from that, I do not know if there was any cement used. I have examined the material in there since the building collapsed. I was there, and saw the men at work. I talked with them. I think the cellar was put down seven or eight feet below the floor joists. I stood right next to the excavation. I do not know whether they used any cement in there. ” It will be observed that the answer is entirely irresponsive. If the question was objectionable, no harm resulted, because the witness did not answer it. *600Without stating what proportion of lime and gravel was used in the buildings constructed by the witness, he proceeded to describe the materials and methods usually employed in constructing buildings similar to the one involved in this action. There was no motion to strike out, and though the testimony was not responsive, it was relevant and material.

The same witness on direct examination was allowed to answer the following questions: “Upon what does the durability of a grout building depend?” “I will ask you whether the mortar made of the stuff which was put into this building would be strong, or otherwise?” “I will ask you to state whether or not the material out of which this building was constructed was sufficiently durable and strong to make the building safe, and such as could support the weight of this two-story structure, .so that it would not collapse of its own weight, without any extraneous cause?” It is contended that none of these questions should have been answered, because the witness had not shown himself qualified to give opinions on the subjects to which they relate. When a witness is offered as an expert, it becomes a preliminary question for the court to determine whether he has the requisite qualifications; and, while there may be some diversity of opinion regarding the effect to be given its decision on such question, ail the authorities agree that the ruling of the trial court should not be reversed in the absence of palpable error. Jones on Evidence, § 371. From the record before us, especially as it does not contain all the evidence, we cannot conclude that there was palpable error in receiving the opinions of this witness.

A piece of grout taken from defendant’s building was introduced in evidence over defendant’s objection. Error cannot *601be predicted upon the ruling, because no exception was taken thereto.

"It is contended that the court erred in permitting the plaintiff to introduce testimony' tending to show that other grout buildings in Watertown had fallen previous to .the collapse of defendant’s building. Such testimony was dearly admissible. If it was a fact that buildings constructed of grout had fallen, such fact was presumptively known to the owners of other buildings of similar construction in the same locality, and was sufficient notice to put such owners upon inquiry concerning the safety of their own structures.

Defendant attempted to prove by parol testimony that the written lease under which the defendant’s premises were occupied when plaintiff’s injuries were received contained no covenant to repair. There was no error in excluding such testimony. It was immaterial, as heretofore shown; assuming that foundation was laid for secondary evidence — a fact not disclosed by the record.

No exceptions were taken to the charge given by the court. Certain instructions requested by the defendant were refused. All of these, except two, are identically the same as the instructions requested in Patterson v. Brewing Co., supra, which this court held were properly refused. The requests not previously considered by this court read as follows: “(1) When the owner of a building rents it for the purpose of a saloon, or for other purposes than that of a dwelling house, he is not an insurer against accident arising from its condition, in the absence of covenants on his part to repair.” “(4) If you find that this building in controversy was improperly constructed, still the.defendant would not be liable for the injury *602occurring to the plaintiff, unless there was something in appearance of the building or its condition to indicate to a person upon an ordinary examination that such was the fact, unless you find from the evidence that, the defendant knew or had notice that it was improperly constructed. The fact that the building was what is known as a ‘grout building’ would not be evidence that it was constructed improperly or of improper material.” The first request was covered by the instructions given by the Court of its own motion. It is an universally recognized rule that where the instructions of the Court given of its own motion present the substance or meaning of a request, unimpaired, the refusal of the request is not reversible error. The fourth request was properly refused fpr the reason that it ignores the important question of whether or not the defendant could, by the exercise of ordinary care and diligence, have ascertained the true condition of the building, as the defendant, notwithstanding the exercise of all of the conditions stated in the request, might have been guilty of gross negligence in failing to discover its dangerous condition and liability to collapse. Patterson v. Brewing Co., supra.

Having carefully considered all of the assignments of error to which attention was called by the argument-of counsel, without discovering any reversible error, the judgment of the Circuit Court is affirmed.