Beidler v. King

70 N.E. 763, 209 Ill. 302

• Court: Illinois Supreme Court
• Decided: April 20, 1904
• Status: Published

Opinion

Mr. Justice Scott

delivered the opinion of the court:

The principal controversy in this case is determined by a construction of the party-wall contract. Appellants’ position is, that after appellee had paid for and used a portion of the party wall she was then liable, under that contract, for a portion of the repairs to the entire wall, and that, it being her duty to assist in keeping the entire wall in repair, she cannot recover damages resulting from a failure to repair the party wall. The language of the contract in reference to repairs is as follows: “And the parties hereto further covenant and agree, that if it shall become necessary to repair or rebuild any portion of said party wall or walls before said party of the second part shall use or pay for her portion of the same, the expense or cost of such repairing or re-building" shall be borne by the said first party; and further, if it shall become necessary to so repair or rebuild after the said party of the second part shall have used or paid for her portion of said wall, then and in that event the cost of such repairing or re-building shall be borne equally by the parties hereto, to the extent that they are each using said wall.”

Under the above contract it is said that appellee was bound to pay her share of any repairs to any portion of said party wall in the proportion which the part of the wall that she had paid for bears to the entire wall; that is, if she was using the north one-half of the wall or had paid one-half of the cost thereof, she would then have paid for and would have been the owner of the one-fourth part of the entire wall, and if the south half of the wall needed repairs she would be liable for one-fourth of the expense thereof, even though she owned no part of that half of the wall. The intention of the parties was that she should pay for this wall and use the same in such portions thereof as she might elect from time to time, and we think the contract simply means that she should be liable for repairs to that portion of the wall for the one-half of which she had paid. The language is, “the cost of which repairing or re-building shall be borne equally by the parties hereto, to the extent that they are each using said wall.” This means that each shall pay one-half of the cost of the repairs to that portion of the wall which is being used by both; that throughout that extent of the wall which was used by each, each should bear one-half of the expense of repairing or rebuilding. The preceding language plainly shows that Beidler was to pay all the necessary expenses of repairing or re-building that portion of the wall which appellee had not used and to the cost of which she had contributed nothing.

In Mickel v. York, 175 Ill. 62, this court said (p. 70): “The contract in this case expressly provides that plaintiff, before making any use of or joining any building to the wall, shall pay or secure to the defendant York the full moiety or one-half part of the value of the said party wall, or so much thereof as shall be joined thereto ■or used, which value shall be the cost price at the time when such wall is to be used. The contract expressly provides, further, that York shall build that wall. By the terms of that contract York retained the ownership of what he had placed upon the plaintiff’s land until he should be paid for it, and he had a right to have it supported on the land of plaintiff under this contract. The wall having been built on the plaintiff’s land under this agreement, which amounts to a license with an interest, is not thereby incorporated and lost in the land or lot, but remains a separate property, still belonging to the builder until he is paid therefor. York, therefore, was the owner of this wall, and was liable for any and all •damage for failing to maintain it in a safe condition.”

In the case at bar appellants were the sole owners of the entire wall, except that part thereof which was being used by appellee, and the rights and liabilities of the parties were the same with respect to that portion of the wall of which appellants were the sole owners as they would have been with reference to the entire wall had appellee neither purchased nor used any part thereof. The cases referred to by appellants, of the class of City of Peoria v. Simpson, 110 Ill. 294, holding that where the same duty rested upon two parties to make repairs both may be said to be guilty of negligence if the repairs be not made, are not in point.

It is then urged that as this contract does not expressly provide for re-building the “whole” of this wall it cannot be re-built under this party-wall contract, and that upon its usefulness as a party wall being destroyed by the fire, it was as though the wall itself was absolutely and entirely destroyed, and appellee became the owner of that portion thereof which stood on her land, and that consequently the injury resulted from her failure to care for her own property. It is unnecessary here to determine whether the wall can be re-built under this contract as a party wall.

The contract contains this language: “Provided always, nevertheless, and on the express condition, that the said party of the second part, her heirs, administrators, executors or assigns, as aforesaid, before proceeding to join any building to the said party wall, or to any part thereof, and before making use thereof or breaking or cutting into the same, shall pay unto the said party of the first part, his heirs or assigns, the full moiety or one-half part of the full value of the whole of said party wadi' if used, or of such portion thereof 'as shall be used as a party wall by said party of the second part, which value shall be the cost price at the time when such party wa,J.-l, is to be used by said party of the second part.” We think this language applicable to this wall so long as it stood, and that the owner of the wall would not be deprived of his title to that portion thereof which stood on the ground of appellee merely by the fact that the wall had become so weakened by the fire as to be no long'er fit for the purpose for which it was originally built.

So construing this contract, we come now to a consideration of the error assigned upon the refusal of the court to instruct the jury to find for the defendants at the close of all the testimony. In support thereof it is said that there is no evidence of negligence on the part of the defendants, and that there is no testimony showing the exercise of due care by the plaintiff. .

The general rule is, that where a fire has occurred in a building, destroying the inner portion of the building and leaving the walls, if the owner negligently permits the walls to remain standing and they thereafter fall, the owner of the wall is liable to the adjacent owner for the resulting damage. 1 Wood on Law of Nuisances, sec. 225; Schwartz v. Gilmore, 45 Ill. 455; Michel v. York, supra.

In this case the attention of appellants was called to the condition of this wall immediately after the fire, on the morning of October 17, 1899. They did not begin the work of taking down the wall until the evening of October 20, 1899, and then only with a force of three men, when a force greater in number than fifteen could have been used in the work. The evidence is that the wall could have been taken down in from four to five days with a sufficient force of workmen,—that is, with as many men as could have worked thereon. • It also appears that after the work of taking down the wall began, it was suspended one day under the direction of the fire deparL ment of the city of Chicago. It fell on the 28th. It is apparent that if a force of men in proper numbers had been put to work on the wall at the earliest possible moment, it would have been entirely removed before the day on which it fell. The longer the wall stood the greater was its inclination to the east. Had a stronger force been at work earlier, the upper portion of the wall would have been sooner removed, and the tendency of the wall to lean to the east would thereby have been lessened. Some evidence was offered tending to show the difficulty about securing men to work on this wall on account of the danger of its falling. This evidence does not show such an effort to secure the necessary men to take down this wall as the emergency required of men of ordinary prudence. A small force was kept continually at work, except on the day when they were interfered with by the fire department. We are not able to say from the evidence, as a matter of law, that by the exercise of measures such as a reasonably prudent man would have used, men sufficient in number to take the wall down at the earliest possible moment could not have been obtained. The evidence tended to show negligence on the part of appellants.

It is then urged that inasmuch as appellee took no steps herself to prevent the wall falling, beyond notifying appellants of its dangerous condition and demanding that they remove it, she was guilty of contributory negligence. Laying aside for the moment the question of her right to do anything with the wall, we think she was entitled to assume that the appellants, whose attention had been called to the condition of the wall, would perform their duty in respect thereto, and we cannot therefore hold, as a matter of law, that she was gmilty -of contributory negligence.

The peremptory instruction was properly refused.

The eleventh instruction given on the part of appellee is an abstract proposition of law. By it the jury are informed that until Emily A. King exercised her right to pay for and use some portion of the wall, Jacob Beidler and his heirs were the owners and had exclusive control thereof, and that she had no right, title or interest in the said wall, or any part thereof. This instruction might better have been made to apply alone to that part of the wall to the cost of which she had not contributed and which she was not using. This instruction, however, is an accurate statement of the law, and while it might properly have been refused, we do not think it could have misled the jury, and unless it appears to the court that such instructions tend to mislead the jury, the judgment will not be reversed on account of the giving thereof. Healy v. People, 163 Ill. 372.

Appellee’s eighteenth instruction was to the effect that if defendants’ portion of the wall, as a result of their negligence, fell and pulled over a portion of the wall which plaintiff had paid for and was using, which portion last mentioned would not otherwise have fallen, she may recover the entire amount of damages sustained by her, resulting from the fall of the entire portion of the wall which fell upon her premises. It is said that this instruction ignores the fact that Mrs. King’s part of the wall may have been weak,, defective and out of plumb and may have contributed to the fall. We do not think it objectionable on this account, as it plainly appears from the evidence that the portion of her wall which came down in the catastrophe was carried to the east, prior to the fall, by the progress of the wall above it in that direction.

Instructions numbered 12, 13 and 14, and one given by the court of its own motion, are all criticised for the •same reasons. No. 13 is in the following language:

“The court instructs the jury that as a matter of law the plaintiff had no right to go on or touch the portion ■of said east wall of said building not paid for by her, for the purpose of preventing the same from falling, or for any other purpose.”

The first and second objections to these instructions are disposed of by what we have already said. The third is, that appellee had the right to enter upon the premises, if necessary, and also upon any part of the wall, for thé purpose of bracing the wall to prevent the same from falling upon her property. We are referred in this connection to the case of Field v. Leiter, 118 Ill. 17. That case deals with the right of entry for the purpose of re-inforcing a party wall under the contract then before the court, and the contract there is held to give one party the right of entry upon the premises of the other for the purpose of strengthening the foundation of the wall. No such provision is found'in the contract in the •case at bar. The portion of the wall to which these four instructions applied was the sole property of appellants. The contract gave to appellee no right to use or deal with the wall, or any portion thereof, in any manner, until she should.have paid one-half the cost thereof. These instructions were correct.

Appellants rely upon the case of Insurance Co. v. Werlein, 42 La. Ann. 1046. That case, however, turns upon certain provisions contained in the Louisiana code which are not found in our statute, and the case is therefore of no assistance in determining this'question.

The objection urged to instruction No. 15 is, that it advised the jury that Mrs. King was entitled to recover if the wall fell through the negligence of the defendants, and omitted the qualification that it must appear that she was in the exercise of due care. This question does not arise upon this instruction, which is to the effect that the fact that Emily A. King paid for and used a portion of the east wall does not bar a recovery for damages occasioned by the fall of another portion of that wall resulting from negligence on the part of the defendants. This objection is also made to instruction No. 18, which we have heretofore considered in regard to a different complaint made to the action of the court in giving the same.

In the instruction given by the court of its own motion, in which all the elements which must be found by the jury to warrant a verdict in favor of the plaintiff are stated, they are told that to warrant a recovery they must “find that the plaintiff was without fault,” and in an instruction given on the part of the defendants is this language: “And if the jury believe, from the evidence, that the plaintiff was guilty of negligence contributing to the injury, then the plaintiff cannot recover and the jury should find for the defendants.” It is a familiar rule that the instructions must be considered as a series. In considering the same objection which is now made, this court, in Wenona Coal Co. v. Holmquist, 152 Ill. 581, said (p. 591): “Third, error in the instructions given for the plaintiff is complained' of. The first instruction is objected to upon the ground that it does not require the exercise of ordinary care by the plaintiff. This is true if the instruction is considered by itself, but all the instructions, both those given for the plaintiff and those given for the defendant, must be considered together as one charge. Upon examining the instructions given for the defendant, we find that five of them, distinctly and in express terms, say to the jury that the plaintiff can not recover unless he shows that at the time of the injury he was in the exercise of ordinary care. Plaintiff’s first instruction, although-unnecessarily announcing the now obsolete doctrine of comparative negligence, is not inconsistent with the five instructions of the defendant, which require the exercise of ordinary care as a condition to the right of recovery, and when it is read in connection with such instruction it could not have misled the jury. This view is sustained by the following decisions of this court: Willard v. Swansen, 126 Ill. 381; Chicago, Burlington and Quincy Railroad Co. v. Warner, 123 id. 38; Village of Mansfield v. Moore, 124 id. 133; Calumet Iron and Steel Co. v. Martin, 115 id. 358; Chicago, Burlington and Quincy Railroad Co. v. Johnson, 103 id. 512; Chicago and Alton Railroad Co. v. Johnson, 116 id. 206.”

No instruction advised the jury that the plaintiff could recover if she was guilty of negligence herself. It is therefore not a case where the instructions are inconsistent with each other, so that the jury could not tell which instruction to follow, but it is a case where an element lacking in one instruction is supplied by another, and the exception is therefore not well taken.

Instructions numbered 6 and 7, asked by the defend- ' ants, were refused. Each would have advised the jury that if the plaintiff had knowledge of the dangerous and unsafe condition of the wall, and could at a moderate expense have prevented its fall, it was her duty to have incurred this expense. What we have already said in discussing instruction No. 13 given on the part of the plaintiff disposes of the errors assigned upon the refusal of these instructions 6 and 7.

The judgment of the Appellate Court will be affirmed.

Judgment affirmed.