Block v. Haseltine

• Citation: 29 N.E. 937, 3 Ind.App. 491
• Case Date: January 21, 1892
• Court: Court of Appeals of Indiana

3 Ind.App. 491

29 N.E. 937

BLOCK et al.

v.HASELTINE.

Appellate Court of Indiana.

Jan. 21, 1892.

Appeal from circuit court, Howard county; DAN WAUGH, Judge.

Action by William Haseltine against William H. Block and others. Judgment for plaintiff. Defendants appeal. Affirmed.

Blacklidge, Blacklidge & Moon and O' Brian & Shirley, for appellants. Cooper & Harness and C. N. Pollard, for appellee.

ROBINSON, C. J.

This action was commenced by the appellee against the appellants to recover damages for injuries done to his goods, wares, and merchandise, caused by the alleged careless, negligent, and unskillful acts of the appellants in excavating a basement upon a certain part of a lot in the city of Kokomo, owned by the appellants Block & Thalman, by reason of which a building owned by Scotton & Scotton, and situate on the real estate adjoining thereto, and which was occupied by the appellee as the tenant of Scotton & Scotton, was thrown down, and the appellee's goods, wares, and merchandise therein were thereby injured and destroyed. The appellants Block & Thalman filed a demurrer to the complaint, and the appellant John V. Smith filed a separate demurrer thereto. The demurrers were overruled, and exceptions taken. The answer was general denial. The cause was tried by a jury. The jury returned a general verdict for the appellee, with answers to interrogatories propounded by both parties by leave of court. The appellants Block & Thalman and the appellant John V. Smith made separate motions for judgment in their favor on the answer of the jury to interrogatories notwithstanding the general verdict, which motions were overruled, and exception taken. Thereupon appellants filed a motion for a new trial, which was overruled, and exception taken, and judgment was rendered on the verdict. The appellants jointly assign as error that the court erred in overruling the motion for a new trial. The appellants Block & Thalman and the appellant John V. Smith assign separate errors that the court erred in overruling the separatedemurrers to the complaint, and that the court erred in overruling their separate motions for judgment in their favor on the answer by the jury to the interrogatories notwithstanding the general verdict. The argument of counsel for the appellants is first addressed to the alleged error of the court in its rulings on the demurrers to the complaint, and it is insisted with much earnestness and ability that the demurrers should have been sustained. It was alleged in the complaint that Scotton & Scotton owned a certain part of a city lot, No. 31, in Kokomo, Ind., upon which they had erected a two-story brick business house, about 110 feet in length and about 22 feet in width, and was properly constructed upon a good and sufficient foundation, which was sufficient and secure for the support of said building; that for more than 10 years immediately prior to the falling of said building by the alleged negligence of the appellants, to-wit, on the 19th day of April, 1888, appellee had used, occupied, and enjoyed said business house upon said premises as a tenant of said Scotton & Scotton, and their immediate grantors, as a jewelry store, which during all of said time was well known to the appellants; that the appellants Block & Thalman were the owners of the north one-third of said lot, and adjoining that part of said lot owned by said Scotton upon which said business house had been erected and was so occupied by the appellee. It is claimed by the appellee that the following averments in the complaint, taken in connection with the formal averments and the facts we have set out, constituted a cause of action against the appellants, to-wit: “That the appellants dug up, removed, and hauled away the dirt and clay the full length of said building, and to the depth of from six to seven feet, and so close to said building as to weaken and destroy the foundation and support thereof, and that they also dug up and removed a portion of the street and sidewalk, which also supported said building occupied by the appellee; and that appellants did not in any way shore up, brace, protect, or support said building, or any part thereof, to make the same safe and secure, although appellants well knew by their wrongful, careless, and negligent acts in making said excavation that they had greatly weakened the support and foundation of said building, and rendered it weak and liable to fall. That said negligent and wrongful acts were done and performed by the appellants, and under their direction, and with their full knowledge and consent; and that said acts were done at divers times from the 1st day of November, 1887, till the 19th day of April, 1889. That by reason of the negligent, careless, and unskillful manner in which said work was done, in this, to-wit, by digging and removing the earth from and against the foundation of said building to the depth of six or seven feet or more along the entire length of said building, and in so digging and removing said earth, the appellants were careless and negligent, and did not use the ordinary precautions, care, and skill, nor did they do and perform said work with the diligence, care, and skill that builders and excavators were in this respect accustomed to use and employ under similar and like circumstances, in this, to-wit, that the appelants, instead of removing the dirt, earth, and clay by sections, as they were requested and told to do by practical and experienced excavators and builders, and to build and construct a wall or foundation for their own building, then in contemplation of construction, at and against the earth and foundations of the building of said Scotton & Scotton, and thus continue until the earth along the entire length of said building had been excavated and removed by sections, and the wall or foundation of the appellants was built and constructed by sections, as is usually and invariably done by diligent and careful builders who make excavations with a care and regard for the situation of the adjoining estate; and had appellants thus used ordinary care and skill, and had they used and employed the care, skill, and precaution usual in such cases, and had not been thus negligent in removing their own soil, earth, and clay, the foundation under the building of said Scotton & Scotton would not have weakened and given way, and said building have fallen and damaged the appellee,” etc.

Before determining the question as to the sufficiency of the complaint we will dispose of the averments in the complaint charging the appellants with the duty to shore up, brace, and protect the building of Scotton & Scotton, in which the appellee's stock of goods was situated, while appellants were engaged in excavating the cellar and removing the dirt therefrom, as...