SH Kress & Co. v. Bullock Shoe Co.

• Decision Date: 26 March 1932
• Docket Number: No. 6424-6427.,6424-6427.
• Citation: 56 F.2d 713
• Parties: S. H. KRESS CO. et al. v. BULLOCK SHOE CO., and three other cases.
• Court: U.S. Court of Appeals — Fifth Circuit

56 F.2d 713 (1932)

S. H. KRESS CO. et al. v. BULLOCK SHOE CO., and three other cases.

Nos. 6424-6427.

Circuit Court of Appeals, Fifth Circuit.

March 4, 1932.

Rehearing Denied March 26, 1932.

R. T. Goodwyn, of Montgomery, Ala., Kenneth I. McKay, of Tampa, Fla., and Forney Johnston, of Birmingham, Ala., for S. H. Kress Co. and G. A. Miller, Inc.

H. F. Crenshaw, and John P. Kohn, Jr., both of Montgomery, Ala., for Bullock Shoe Co.

B. P. Crum, of Montgomery, Ala., for Pizitz-Smolian Cooperative Stores, Inc.

H. F. Crenshaw and John P. Kohn, Jr., both of Montgomery, Ala., for Carolyn S. and Lucy B. Randolph.

Wiley C. Hill, of Montgomery, Ala., for Mrs. J. S. Hexton and others.

Before BRYAN, SIBLEY, and HUTCHESON, Circuit Judges.

HUTCHESON, Circuit Judge.

These four cases, suits for damages resulting from the collapse of connected buildings in Montgomery, Ala., while excavations were being made on lots immediately adjoining, for the purpose of erecting a building thereon, were, over the objection of defendants, consolidated for trial. The trial resulted in a verdict and judgment for plaintiffs in each of the causes against the owner and the independent contractor of the building being erected. Appellants are here assigning errors upon the conduct and result of the trial. While many errors are assigned, two are principally relied on, one that there is no evidence that either defendant was negligent, the other that, if there was negligence on the part of the contractor, it was negligence for which the owner of the building would not be liable. At and before the collapse, the appellant G. A. Miller, Incorporated, was engaged as an independent contractor in constructing for appellant Kress Company, a new building on lots Nos. 17 and 19, owned by the Nicrosi heirs but in the possession of Kress under a long-term lease, the terms of which required it to erect a new building covering the entire lots. Miller's contract charges him with responsibility without direction or control from the owner, of erecting the buildings in accordance with the plans and specifications, and it was conceded by all that in fact and in law he was an independent contractor. The case was submitted to the jury on that theory.

The cause went to trial on an amended complaint in two counts, the first setting up that the defendants on the lot or parcel of land in their possession and control, were excavating and removing the soil, and while engaged in said work undertook, while so excavating and removing the soil, to support by underpinning, the west wall of the storehouse occupied by plaintiff and immediately next to the excavation being made by defendants. That the defendants did said underpinning in so negligent and careless a manner that as the proximate result and consequence of it, the west wall fell and collapsed causing destruction and damage. Bullock and Pizitz claimed damage to stock, Hexton and Randolph to the buildings. The second count alleged that while the defendants were excavating they negligently undermined and withdrew the support from and around the foundation of the building occupied by Bullock at its southwest corner; that they negligently dug and excavated the soil under the sidewalk on Dexter avenue at or near the southwest corner of the lot, and as the proximate result caused damage to the tenants in loss and injury to their stocks, to the owners, in the destruction of their buildings.

Much testimony was offered as to the general manner of the work of excavating and underpinning, both on and in front of the Kress lot, and on, under, and in front of plaintiffs' property adjoining. When, however, it came to the submission to the jury, it was accepted as the law of the case that under its facts there was no basis for any claim against defendants on account of work done on the Kress property, either because of what they had done or omitted to do there, or because of failure to give notice of what they had done, or intended to do there. The whole case for plaintiffs was pitched upon the affirmative allegations of the two counts, that the cause of the collapse was work negligently done by the contractor on, under, and in front of plaintiff's lots.

The court made this clear not only in its general charge, where the issue was presented from many different angles, all, however, to the same effect, but in the special charges given at defendants' request. These special charges, in a full and complete way, presented also all of the defensive theories including contributory negligence, and the inherent weakness of plaintiffs' buildings.

Each defendant, at the conclusion of the evidence, requested an instructed verdict on the ground that the evidence had failed to show any proximate fault on its part. These instructions were refused, and the case sent to the jury, which found that the contractor was negligent, and that the work was, in and of itself, so inherently dangerous as that the owner ought reasonably to have anticipated what occurred, and itself made provision against it. The verdict is general. It does not disclose the specific negligence found. This, however, is not material because, though the evidence was greatly conflicting, there was ample evidence to support a finding upon either the theory that there was an encroachment on plaintiffs' property and negligent underpinning of its walls, or that there was a negligent undermining of the walls by excavating on and in front of plaintiffs' property, or that there was negligence in both particulars.

The complaint of the appellant Miller, Inc., that it should have had a verdict by instruction is therefore unfounded, and unless some of the errors assigned upon the conduct of the trial and the manner of the submission of the cause to the jury are well taken, the judgment must be affirmed as to it.

Apart from the underlying claim made by each appellant that the evidence does not support the verdict as to it, errors are assigned by them to the introduction of evidence, to certain...