Bohrer v. The Dienhart Harness Co., 1,761

Docket Nº1,761
Citation49 N.E. 296, 19 Ind.App. 489
Case DateJanuary 11, 1898
CourtCourt of Appeals of Indiana

Rehearing denied March 10, 1898.

From the Tippecanoe Superior Court.


Stuart Brothers & Hammond and Edwin P. Hammond, Jr., for appellant.

Kumler & Gaylord and John F. McHugh, for appellee.

BLACK J. HENLEY, J., dissents. WILEY, J., dissents.



The appellee recovered judgment against the appellant. The questions presented on appeal were raised by the appellant's exception to the court's conclusions of law upon the facts stated in a special finding. The south part of a certain lot in the city of Lafayette was owned by one James D. Marshall. There was on said south part a three-story brick building, which was occupied and used, under a lease from said Marshall, as a storehouse and place of business, by the appellee, a corporation engaged in manufacturing and jobbing harness and saddlery, and it had in said building goods of the value of $ 5,000.00. The appellant owned all the remaining and north part of said lot. The lot was at the southeast corner of Third and Ferry streets, the former running north and south, the latter east and west. Said building fronted on Third street and extended back sixty feet, its north wall of brick, with stone foundation, extending along the north line of the part of said lot owned by Marshall, and immediately adjacent to the south line of the part owned by the appellant. The north line of the lot extended seventy feet along Ferry street. There was an old brick building on the part of the lot owned by the appellant, its south wall being about seven feet from the dividing line. The appellant, desiring to remove said old building and erect a new brick building covering all of his portion of said lot, with a basement or cellar, applied for, and upon giving bond as required by a city ordinance obtained, from said city, on the 11th of February, 1892, a proper building permit, good from that date until August 11, 1892, whereby he was permitted to use one half the width of Third and Ferry streets, immediately fronting the property which it was proposed to improve, for depositing building materials thereon, commencing at the outer edge of the adjacent sidewalk, it being expressly stipulated therein that nothing contained in the permit should be construed as permitting the obstruction of any street, alley or gutter so as to prevent the free passage of persons, vehicles or water upon or along the same. About the 1st of April, 1892, the appellant contracted with the firm of Green & Demerly, brick and stone masons, for the tearing down of said old building and for the erection of said proposed building as to brick and masonry, the contract providing that said firm, after using such of the bricks in the old building as were suitable for the purpose, were to furnish the other bricks for the proposed building and the stone for its foundation, and were to do the work, including tearing down and cleaning the bricks, for $ 1,095.75. Green & Demerly, taking said contract by the job, were to employ and pay their own laborers and were to receive from the appellant said sum for said work and new materials. In a few days after the making of this contract, it was mutually agreed between said firm of Green & Demerly, the appellant and one Henry Martin, that Martin should have the job of tearing down the old building, cleaning the bricks and removing the useless rubbish, and that for this work he should receive from the appellant $ 130.00, which sum should be deducted from the amount which it had theretofore been agreed was to be paid to Green & Demerly; that Martin should have charge of the tearing down of the old building and cleaning the bricks for the appellant; and that he should employ and pay such assistants as he might require in doing this work. In pursuance of this contract Martin tore down the old building, cleaned off such of the bricks as were suitable to be placed in appellant's new building, and hauled away the worthless materials and rubbish, completing the job about the latter part of May, 1892. He was paid in full therefor by the appellant said sum of $ 130.00 at or soon after the completion of the job. In the execution of this contract Martin employed and paid the men assisting him, and the appellant exercised no control over Martin or his employes in directing how the work should be done, except that the appellant did direct Martin to place and pile such of the bricks as were to be used in the proposed building on Ferry street, immediately north of appellant's part of said lot, but he did not direct Martin to pile or place any of the bricks in the gutter of said street. Martin, in executing this contract placed and piled the bricks on the south side of Ferry street, from near the center of the street, where the pile was about eight feet high, and reaching south in and over the south gutter of the street to the curbstone, where the pile was about two feet high, the pile from east to west being about thirty feet long. The bricks remained so piled until long after the 23d of June, 1892.

Between one and two weeks after the completion by Martin of his contract as to the old brick house and the payment to him by the appellant of $ 130.00 therefor, Martin and the appellant entered into a contract whereby Martin was to do the excavating and removing of the earth for the basement or cellar of the proposed new building; said contract being made upon the acceptance by the appellant of a written proposition from Martin dated June 8, 1892, whereby he proposed to excavate the cellar seventy feet long and forty feet wide and six and one-half feet deep for $ 105.00, all dirt to be hauled away. Upon the acceptance of Martin's proposition, he commenced the execution of the contract, employing and paying his workmen without directions from the appellant. He hauled the soil from the cellar with wagons and teams, and in so doing he formed a wagon way from the cellar at its northeast corner, leading therefrom across the sidewalk and gutter on the south side of Ferry street. This wagon was crossed the gutter immediately east of the old bricks so placed on said street and in the gutter thereof. Ferry street had a descending grade from east to west of eighteen inches in the one hundred feet, and at times of rain the surface water from some three or four blocks east and south passed and flowed off through said gutter. The curbstone between the gutter and the sidewalk was ten inches high from the bottom of the gutter. The old bricks so placed and piled and remaining in the gutter would and did obstruct and prevent the passage of water coming from the east therein. Martin did not remove the curbing, but he placed boards and trash in the gutter so as to facilitate the passage of his wagons in removing the earth. As the excavation proceeded, the wagon way became more and more inclined so as to reach the bottom of the progressing cellar. On the 23d of June, 1892, in the afternoon, Martin had removed most of the earth from the excavation. On the south side, up to the foundation wall of the building on Marshall's part of the lot, the earth was removed for most of the way down to, and even with, the bottom of said foundation, but for the space of some fifteen feet on the west end of said foundation wall and for the space of some twenty feet on the east end thereof, the excavation had not been carried down to the bottom of the wall by some one to two and one-half feet, there being less depth of excavation near the corner of the cellar and where the wagon way led out of it. For the length of three or four feet near the middle of the wall, the excavation had been carried down from two to four inches below the level of the bottom of the wall. The earth toward the bottom of the excavation, and under said wall was composed of a fine gravel, and when the excavation was so carried below the foundation, fine gravel dropped or rolled out from beneath the wall for two or three inches back from its north side. The wall was twenty-one to twenty-two inches thick and six feet six inches deep, composed of rock laid in mortar. Many of the stones were small and of irregular and improper shape to make a strong and durable wall, especially so as to those stones in the north side of the wall, abutting on appellant's soil. There were no bond stones, or, if any, very few, reaching through the entire thickness of the wall. Some of the stones on the north side were laid edgewise, so as to be of little help in giving strength to the wall, which had been built about twenty-five years, and the mortar, if ever good, had lost, by reason of age and dampness, most of its cohesive strength, so that it served but little purpose in supporting and giving strength to the wall.

The situation and condition of the bricks in the street and gutter and the excavation and wall were plainly observable and known to both the appellant and the appellee, through its president and secretary. The appellant, from the time of commencing to tear down his old brick building up to and including the 23d of June, 1892, visited the work two or three times a week, for a short time, to see how the work was progressing, and the president and the secretary of the appellee were present daily in the prosecution of appellee's business in the Marshall building, and they had full control and management of appellee's business.

Toward the close of the afternoon on the 23d of June, 1892, there were indications of a heavy storm of wind or rain or both and Martin and his employes, to avoid the threatened storm, quit their work of excavation about half past five o'clock, when it had commenced to sprinkle. Soon afterward there was a heavy wind...

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  • Bohrer v. Dienhart Harness Co.
    • United States
    • Court of Appeals of Indiana
    • January 11, 1898
    ...19 Ind.App. 48949 N.E. 296BOHRERv.DIENHART HARNESS CO.Appellate Court of Indiana.Jan. 11, Appeal from superior court, Tippecanoe county; Frank B. Everett, Judge. Action by the Dienhart Harness Company against George A. Bohrer. From a judgment for plaintiff, defendant appeals. Affirmed. HENL......

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