Brown v. City of Vicksburg

Cook, J., delivered the opinion of the court. In regard to the liability of the Mississippi Lumber Company the rule announced by this court in City of Vicksburg v. Holmes, 63 So. 454, 51 L. R. A. (N. S.) 469, seems to apply. In that case we cited, with approval, Thornton v. Daw, 60 Wash. 622, 111 Pac. 899, 32 L. R. A. (N. S.) 968. [522] In Winterbottom v. Wright, 10 Mees. & W. 115, it is. said: “If we were to bold that the plaintiff could sue in such a case, there is no point at which actions would stop. The safe rule is to confine the right to recover to those who enter into the contract. If we go one step beyond that, why should we not go fifty?” In the case, from which we have quoted, the defendant contracted with the postmaster general to furnish and keep in repair a mail coach. By reason of the defendant’s negligence the coach broke down and injured the driver of the coach: It was held that the driver could not maintain an action against the defendant for the injury. In Casey v. Wrought Iron Bridge Co., 114 Mo. App. 47, 89 S. W. 330, the reason for the rule is stated this-way: “But the better reason is that ordinarily in such cases there is found a break in the causal connection between the contractor’s negligence and the injury. It is the intervening negligence of the proprietor that Is the proximate cause, and not the original negligence of the contractor. By occupying and resuming possession of the work, the owner deprives the contractor of all opportunity to rectify his wrong. Before accepting the work as being in full compliance with the terms of the contract, he is presumed to have made a reasonably careful inspection thereof, and to know of its defects, and, if he takes it in the defective condition, he accepts the defects and the negligence that cause them as his own and thereafter stands forth as their author.” In the present case it will be assumed that the original contractor made a reasonably careful inspection of the material furnished by the Mississippi Lumber Company to ascertain whether the material was of the character the company had contracted to furnish. It will be noted that the declaration does net aver that the Mississippi [523] Lumber Company did not furnish the material it con-, tracted to furnish. The lumber company was under contract with the contractor, and the contractor was responsible to the owner. It does not appear that there was any deceit, or concealment of the alleged defects in the sill. It-is sufficiently clear from the declaration that the contractor accepted the sills and used them in the building; that the extractor turned over the finished building to the owner, and the owner acepted same and occupied it as a church for two years preceding the injury for which recovery is sought. A careful examination of the authorities leads us to conclude that the declaration does not state a cause of action against the Mississippi Lumber Company. The mere charge of negligence does not demonstrate actionable negligence. There is no averment that the alleged defectiveness of the lumber furnished was latent and not discoverable by a reasonably careful inspection, or that there was any deceit or concealment, on the part of this defendant. Judge Jaggard, in O’Brien v. American Bridge Co., 110 Minn. 364, 125 N. W. 1012, 32 L. R. A. (N. S.) 982, 136 Am. St. Rep. 502; reviews the authorities upon the question here involved, and announces the approved rule in such cases. See, also, Cooley on Torts, vol. 2, p. 1486 et seq. ■ The declaration makes out a case of tort against the city of Vicksburg. It is charged that the city “unlawfully took and damaged the said private property of plaintiffs for its public use,” that plaintiffs demanded of- said defendant city compensatory damages, etc.; that the city, “in an attempt to lessen or compensate plaintiffs’ damages aforesaid, undertook to and did raise and elevate said building up to the said new or raised grade of said street, so that the floor of said building, ” etc. It is further charged that the city, in the prosecution of this work, “carelessly, negligently, knowingly, improperly, [524] and unlawfully raised and supported said building,” which .carelessness, negligence, and unlawfulness operating together with the alleged wrong of the Mississippi Lumber Company, caused the damage described in the declaration. The city cannot complain because of the averment that the wrongful act of another contributed to the injury. It makes no difference that the plaintiff was injured by one who had contracted to do the work. The obligation to abstain from positive wrongs rests upon every one, and does not depend upon contracts, or other circumstances. Affirmed as to the Mississippi Lumber Company, and reversed and remanded as to the city of Vicksburg. Affirmed as to Lumber Co. Reversed and remanded as to. appellee.