Bialkowicz v. Pan Am. Condominium No. 3, Inc.

• Decision Date: 12 November 1968
• Docket Number: No. 67--1074,67--1074
• Citation: 215 So.2d 767
• Parties: Joseph BIALKOWICZ and Bella Bialkowicz, his wife, Appellants, v. PAN AMERICAN CONDOMINIUM NO. 3, INC., a Florida corporation, Moses Hersman and Concrete, Inc., Appellees.
• Court: Florida District Court of Appeals

Page 767

215 So.2d 767

Joseph BIALKOWICZ and Bella Bialkowicz, his wife, Appellants, v. PAN AMERICAN CONDOMINIUM NO. 3, INC., a Florida corporation, Moses Hersman and Concrete, Inc., Appellees.

No. 67--1074.

District Court of Appeal of Florida, Third District.

Nov. 12, 1968.

Rehearing Denied Dec. 11, 1968.

Smith & Mandler, Harris J. Buchbinder, Miami Beach, for appellants.

Fuller & Feingold, Miami Beach, for Pan American.

Weinstein, Weissenborn & Burr; Poole & Vogelsang, Miami, for Hersman.

Blackwell, Walker & Gray and James E. Tribble, Miami, for Concrete, Inc.

Before CHARLES CARROLL, C.J., and BARKDULL and HENDRY, JJ.

HENDRY, Judge.

The appellants were the plaintiffs below and appeal from a jury verdict in their favor of $3,000. That amount was based on property damage which the jury determined was caused by the acts of the three defendants, all whom were held liable as joint tortfeasors. All of the appellees were defendants below, and have cross-assigned error, contending that they are not liable to the appellant.

The plaintiffs owned a three unit residential building adjacent to the construction site of a condominium apartment being built by the defendant, Pan American Condominium No. 3, Inc. (hereinafter, Pan Am). This defendant had hired the second defendant, Moses Hersman, as its general contractor, and entered into a written agreement with him to that effect. Hersman had subcontracted the job of driving the supporting piles to the third defendant, Concrete, Inc. The construction project began around August, 1964, with the demolition of an existing building and the pile driving operation. It was after this time that the plaintiffs noticed the appearance of large cracks on the interior and exterior walls of their building.

This action was begun in December, 1964, ultimately falling within the jurisdiction of the Circuit Court of Dade County. Extensive pleadings were filed and trial did not commence until after the plaintiffs had filed their Third Amended Complaint. The latter pleading sought recovery against the three defendants for damage to the plaintiffs' building resulting from the negligent manner in which the pile driving on Pan Am's property was performed.

At this point, we feel it is necessary to set forth certain material excerpts from that Third Amended Complaint:

'* * *

'COUNT I

'* * * That sometime during the month of August, 1964, the defendant, PAN AMERICAN CONDOMINIUM NO. 3, INC., through its agents, servants or employees, and/or the defendant, MOSES HERSHMAN (sic), or through such other servants and employees of said defendant corporation and the said defendant, MOSES HERSHMAN (sic), did request permission of the plaintiffs to enter upon their property for the purpose of moving certain construction equipment across same, so that they could have easier access to the construction site. That the plaintiffs did refuse to grant said permission, because the plaintiffs determined that it was impossible for the defendants to move across their property without causing serious damage to the plaintiffs' property.

'* * * That thereupon and shortly after the defendants' request, as hereinabove stated, the plaintiffs left the city for a period of time for a vacation. That the defendants, jointly and severally, did thereupon enter upon the premises of the plaintiffs, and did destroy various and sundry ornamental trees and shrubbery; did tear up a concrete walkway of the plaintiffs', and did cause extensive damage to the plaintiffs' home.

'* * * That the trespasses by the defendants on the plaintiffs' land were made deliberately and in order to enable the defendants to construct a building on the premises adjacent to the plaintiffs (sic), with the least inconvenience to the defendants. That the defendants might have constructed said building by using other means of ingress and egress to the construction site, rather than their coming upon plaintiffs' land with their men and equipment.

'* * * That such acts of the defendants were done willfully (sic), knowingly and without right or pretense.

'WHEREFORE, as a result of the defendants (sic) trespass, the plaintiffs suffered compensatory damages, and are likewise entitled to punitive damages as a result of the willful (sic) and wanton acts of the defendants. Plaintiffs sue the defendant in a sum within the jurisdiction of this Court, and demand trial by jury of all issues triable by jury.' (Incorporated in the Third Amended Complaint by reference to the Second Amended Complaint.)

'* * *

'COUNT II

'* * * That the defendant, PAN AMERICAN CONDOMINIUM NO. 3, INC., acting through its agents, servants or employees, and/or the defendant, CONCRETE, INC., acting through its agents, servants or employees, did so negligently and carelessly construct the building adjacent to the plaintiffs' property; and in particular the laying of the foundation for said construction, that during the course of same, and as a result of pile drivings for the foundation, excessive and unnecessary vibrations occurred, thereby causing extensive damage to the plaintiffs' property.

WHEREFORE, plaintiffs sue the defendants, PAN AMERICAN CONDOMINIUM NO. 3, INC. and CONCRETE, INC., for the damages caused to their property as a result of the negligence of the said defendants, in a sum not exceeding the jurisdiction of this Court, and demand trial by jury of all issues triable by a jury.' (Incorporated in the Third Amended Complaint by reference to the Second Amended Complaint.)

'* * *

'COUNT III

'* * * That as a result of the actions of the defendant, CONCRETE, INC., as aforesaid, (negligently installing the support piles) the plaintiffs' property sustained severe damage in that the foundation of the building was seriously affected, resulting in a 'slippage' of the building; that large cracks in the walls and roof of the plaintiffs' building occurred; that the ceiling of plaintiffs' building was considerably weakened and damaged; and that all of said damages are within the jurisdiction of this Court.

'* * * WHEREFORE, plaintiffs sue the defendant, CONCRETE, INC., in a sum not exceeding the jurisdiction of this Court, and demand trial by jury. * * *'

During the course of the trial, the plaintiffs attempted to introduce testimony and evidence relating to the physical discomfort that they experienced, including a heart attack suffered by Joseph Bialkowicz ostensibly as a result of his concern with the continuing acts of the defendants. The court disallowed any such testimony relating to these matters, and the record discloses its reasons for such denial thusly:

'THE COURT: Just a second. I have heard about all the argument I need, and I am going to make a ruling.

'The motion for mistrial is denied. Also, the court is ruling irrelevant the inconvenience. It is not plead, to begin with, nor is there anything in the pleadings to indicate that it might be claimed.

'The court will instruct the jury to disregard the entire statement concerning the inconvenience, heart attack, and everything else; and will instruct the jury that that is not part of the damages.'

* * *

* * *

'THE COURT: Gentlemen of the Jury, the court instructs you to disregard the last statement of the witness concerning inconvenience and anything about a heart attack.

'Those matters are not the subject of this law suit, and you are instructed they are not recoverable and the damages will be limited to the property damage here.' (R. 1098--1099.)

The jury assessed plaintiffs' damages at $3,000. The plaintiffs have appealed and contend that it was error for the court to disallow proof of damages other than those which were actually done to the plaintiffs' property. Rather, plaintiffs assert that, notwithstanding the general prayer for relief contained in the Third Amended Complaint, they are entitled to recover for discomfort and inconvenience resulting from the defendants' negligence. The basic rule upon which we base our decision as to the correctness of the trial court's foregoing ruling is as follows: If special damages are not specially plead, then evidence of them is inadmissible. Florida Rules of Civil Procedure, § 1.120(g), 30 F.S.A.; Postal Telegraph & Cable Company v. Doyle, 123 Fla. 695, 167 So. 358; Ephrem v. Phillips, Fla.App.1958, 99 So.2d 257. Thus, our next inquiry is: Whether the damages plaintiffs were attempting to prove are special or general?

Specifically, the damages which plaintiffs were precluded from proving cover the bodily suffering and physical inconvenience they allegedly suffered as a result of the defendants' negligence. Plaintiffs' primary grievance concerns the heart attack, mentioned earlier, which Joseph Bialkowicz experienced, and which was purportedly caused by the disturbing noise and the many frustrating encounters with the various defendants. While we certainly agree that such injury may result from the activities that were going on, we cannot say that such injury is that type as may reasonably be expected to follow the negligent act of another. As to this point, it is our view that damages of this sort do not...