Collias v. Detroit & N. Mich. Bldg. & Loan Ass'n, No. 50.

CourtSupreme Court of Michigan
Writing for the CourtMcDONALD
Citation189 N.W. 866,220 Mich. 207
PartiesCOLLIAS et al. v. DETROIT & NORTHERN MICHIGAN BLDG. & LOAN ASS'N et al.
Decision Date02 October 1922
Docket NumberNo. 50.

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 and under the walls and foundation of plaintiffs' leased building and the addition thereto, in such manner as to cause the earth under the foundation walls to cave in and fall away.’

The plaintiffs' building was an old one, and the foundation, which was made of cobblestones and mortar, extended into the earth about 3 or 4 feet. Upon this foundation the brick wall was laid. The soil was sandy and mixed with gravel. The defendants excavated along the entire south wall to a depth of about 3 feet, but left a ledge or shelf 30 inches wide extending from the wall in a slanting direction. Mr. Shannon, the city building inspector, who inspected the work from time to time as it progressed, said that this ledge was sufficient to carry the soil in its natural state, but instructed them not to excavate any nearer the wall until they had taken some means to protect it. As to the means to be used, he testified as follows:

‘We talked of several ways, but finally decided. Mr. Hibbard said he had a large steel eye-beam he would put across the front corner or pier. I believed a pier under that, and then continuing along in sections, making a drift in where the soil was, or a slight drift under the wall, putting piers along occasionally, then putting other piers when those got set between to support the wall. I approved that plan providing they put some braces across from one building to the other to hold the wall. Up to that time they had taken no precautions whatever to support the building because it was not necessary. I am not aware that there ever were any braces put under the Hughes building or between the Hughes building and the Davison building, or that there was any sill, beam, or girder put in. I made one suggestion to Mr. Hibbard; that the needles under the wall be put under the brickwork instead of under the stone wall. I thought perhaps it would be safer under that on account of the fact that a rubble stone wall is not very dependable to needle under. It does not hold together as walls laid up of brickwork; it won't take the strain as far apart.’

Thus far there seems to be no dispute as to the facts. All of the parties apparently considered the wall and building safe. The dispute arises in regard to what followed. The plaintiffs claim that the defendants...

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7 practice notes
  • Mallory v. Ice & Supply Co., No. 26332.
    • United States
    • United States State Supreme Court of Missouri
    • 18 Mayo 1928
    ...take care of that, and which is not denied. Stanley v. Ice Co., 279 S.W. 157; Waldron v. Coal Co., 109 S.E. 729; Collias v. Bldg. Assn., 189 N.W. 866. (b) The burden was upon defendant to prove all the facts necessary to constitute Goodman an independent contractor. Waldron v. Coal Co., 109......
  • Wight v. H. G. Christman Co., No. 15.
    • United States
    • Supreme Court of Michigan
    • 1 Octubre 1928
    ...an independent contractor is a question of law for the court. Collias v. Detroit & Northern Michigan Building & Loan Association, 220 Mich. 207, 189 N. W. 866. The test of whether Gohr was an independent contractor or an employee of Christman Company was the right of the Christman C......
  • Bator v. Ford Motor Co., No. 86.
    • United States
    • Supreme Court of Michigan
    • 11 Diciembre 1934
    ...landlord and not that of the excavators. The case turned on the absence of a showing of negligence. Collias v. Detroit, etc., Loan Ass'n, 220 Mich. 207, 189 N. W. 866, was an action for negligent injury to leased premises. A judgment for plaintiffs against the owner of adjoining property wa......
  • Utley ex rel. Travelers Ins. Co. v. Taylor & Gaskin, Inc., No. 4.
    • United States
    • Supreme Court of Michigan
    • 7 Junio 1943
    ...contractor is a question of law. Wight v. H. G. Christman Co., 244 Mich. 208, 221 N.W. 314;Collias v. Building & Loan Ass'n, 220 Mich. 207, 189 N.W. 866. The test for determining whether or not the relationship of independent contractor existed was stated in Zoltowski v. Ternes Coal &am......
  • Request a trial to view additional results
7 cases
  • Mallory v. Ice & Supply Co., No. 26332.
    • United States
    • United States State Supreme Court of Missouri
    • 18 Mayo 1928
    ...take care of that, and which is not denied. Stanley v. Ice Co., 279 S.W. 157; Waldron v. Coal Co., 109 S.E. 729; Collias v. Bldg. Assn., 189 N.W. 866. (b) The burden was upon defendant to prove all the facts necessary to constitute Goodman an independent contractor. Waldron v. Coal Co., 109......
  • Wight v. H. G. Christman Co., No. 15.
    • United States
    • Supreme Court of Michigan
    • 1 Octubre 1928
    ...an independent contractor is a question of law for the court. Collias v. Detroit & Northern Michigan Building & Loan Association, 220 Mich. 207, 189 N. W. 866. The test of whether Gohr was an independent contractor or an employee of Christman Company was the right of the Christman C......
  • Bator v. Ford Motor Co., No. 86.
    • United States
    • Supreme Court of Michigan
    • 11 Diciembre 1934
    ...landlord and not that of the excavators. The case turned on the absence of a showing of negligence. Collias v. Detroit, etc., Loan Ass'n, 220 Mich. 207, 189 N. W. 866, was an action for negligent injury to leased premises. A judgment for plaintiffs against the owner of adjoining property wa......
  • Utley ex rel. Travelers Ins. Co. v. Taylor & Gaskin, Inc., No. 4.
    • United States
    • Supreme Court of Michigan
    • 7 Junio 1943
    ...contractor is a question of law. Wight v. H. G. Christman Co., 244 Mich. 208, 221 N.W. 314;Collias v. Building & Loan Ass'n, 220 Mich. 207, 189 N.W. 866. The test for determining whether or not the relationship of independent contractor existed was stated in Zoltowski v. Ternes Coal &am......
  • Request a trial to view additional results

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