Collias v. Detroit & N. Mich. Bldg. & Loan Ass'n

• Decision Date: 02 October 1922
• Docket Number: No. 50.,50.
• Court: Michigan Supreme Court
• Parties: COLLIAS et al. v. DETROIT & NORTHERN MICHIGAN BLDG. & LOAN ASS'N et al.

220 Mich. 207
189 N.W. 866

COLLIAS et al.
v.
DETROIT & NORTHERN MICHIGAN BLDG. & LOAN ASS'N et al.

No. 50.

Supreme Court of Michigan.

Oct. 2, 1922.

Error to Circuit Court, Genesee County; Black, Judge.

Action by Gust Collias and another against the Detroit & Northern Michigan Building & Loan Association and others. Judgment for plaintiffs, and the defendant named brings error. Affirmed.

Argued before FELLOWS, C. J., and WIEST, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ.

[189 N.W. 866]

Withey & Freeman, of Flint, for appellant.

S. S. Pearlstine and Parker & Wilber, all of Flint (George W. Cook, of Flint, of counsel), for appellees.

McDONALD, J.

On the 1st day of October, 1919, the plaintiffs were conducting a restaurant business in the building known as No. 520 N. Saginaw Street, in the city of Flint. John C. Hughes owned the building, and the plaintiffs were his tenants. They leased the premises on the 1st day of April, 1919, for a term of two years, with an option for two years more, paying a rental of $125 per month for the first nine months and $150 per month for the balance of the term. Before they went into possession they repaired the building, put in a tile front, erected an addition to the rear, and made other improvements, which they claim cost them in all about $2,500. Their equipment cost $5,000. The second floor was rented, and they claim that these rentals and their restaurant business made them a net profit of $1,500 a month. The Detroit & Northern Michigan Building & Loan Association owned the adjoining property on the south. Desiring to erect new buildings on this property, it made a contract for that purpose with defendant Hibbard, who sublet the excavating work to defendant Wilkins. While the excavating was in progress a part of the wall and building

[189 N.W. 867]

collapsed, and the city ordered the remaining portion to be torn down. The plaintiffs brought this action to recover their damages which they say they sustained because of the negligence of the defendants in excavating under the walls of their building without taking any measures to protect it. The circuit judge determined the measure of their damages to be the value of the personal property destroyed, the value of the improvements and the loss of profits from the time of the injury to the date of the trial.

The defendants were represented by separate counsel. All of them sought to show in their defense that the wall fell because of inherent weakness and pressure of the building, and not because of any fault of theirs; that there was no negligence except on the part of the plaintiffs, who were guilty of contributory negligence; and, as an additional defense on its part, the Detroit & Northern Michigan Building & Loan Association insisted that defendants Hibbard and Wilkins were independent contractors, for whose acts it was not responsible.

At the conclusion of the plaintiffs' case the court directed a verdict in favor of defendant Wilkins, and subsequently submitted to the jury the question as to the liability of the other two defendants. The jury rendered a verdict of not guilty as to Mr. Hibbard, and guilty as to the Detroit & Northern Michigan Building & Loan Association, and assessed plaintiffs' damages at $10,000. From the judgment entered thereon the defendant Detroit & Northern Michigan Building & Loan Association has appealed.

The plaintiffs' right to recover in this action is based upon the following allegation of negligence:

That they ‘carelessly and negligently removed the earth and dirt next to...