Daugherty v. Herzog

• Citation: 44 N.E. 457,145 Ind. 255
• Parties: DAUGHERTY v. HERZOG.
• Decision Date: 10 June 1896
• Court: Indiana Supreme Court

145 Ind. 255

44 N.E. 457

DAUGHERTY

v.HERZOG.

Supreme Court of Indiana.

June 10, 1896.

Appeal from superior court, Tippecanoe county; F. B. Everett, Judge.

Action by Hiram C. Daugherty against Adam Herzog to recover for loss of services caused by the death of plaintiff's daughter from the alleged negligence of defendant. A demurrer to the complaint was sustained, and plaintiff appeals. Affirmed.

C. E. Lake, Wm. B. Wood, and Geo. P. Haywood, for appellant. R. P. Davidson, for appellee.

MONKS, C. J.

While passing along a sidewalk on Main street, in the city of Lafayette, appellant's daughter was killed by the falling of the front wall of a building which stood upon the street line, adjacent to the sidewalk. This action was brought by appellant against appellee to recover damages for loss of services occasioned by her death. Appellee's demurrer was sustained to each paragraph of complaint, and, appellant refusing to plead further, judgment was rendered for appellee. The facts alleged, essential to the decision of the question presented, are as follows: One O'Ferrall for many years had been the owner of the three-story brick building, on the north line of Main street, which caused the accident, consisting of two ground floor business rooms, one of which was occupied by one Lohman as a drug store. The other room becoming vacant, Lohman desired it, also, and wished the two rooms thrown into one, by the removal of the partition brick wall. To this O'Ferrall consented, and thereupon O'Ferrall or Lohman, or both, employed the defendant, Herzog, this appellee, who was a builder and contractor, by an independent contract, to remove the wall and remodel the building to Lohman's wishes. This work he completed, and turned the building over to Lohman, who reoccupied it as a drug store from 1890 until 1892, when the disaster occurred which took the life of the appellant's daughter. It is alleged that the appellee did his work unskillfully and defectively, put in iron posts not sufficiently secured upon the under wall, and did not sufficiently fasten and tie together the iron or steel beams resting on the tops of these posts, and in some other respects negligently did his work, and that, because of this negligent and imperfect reconstruction of the building, it fell. The only error assigned calls in question the action of the trial court in sustaining the demurrer to the complaint.

The rule is that an action for negligence will not lie unless the defendant was under some duty to the injured party, at the time and place where the injury occurred, which he has omitted to perform. Railroad Co. v. Griffin, 100 Ind. 221, 222;City of Indianapolis v. Emmelman, 108 Ind. 530, 532, 9 N. E. 155, and cases cited; Faris v. Hoberg, 134 Ind. 269, 274, 33 N. E. 1028;Railway Co. v. Treadway, 142 Ind., on page 485, 40 N. E. 807, and 41 N. E. 794. If appellee failed to repair the building in conformity with his contract, he was liable to respond in damages therefor to the other contracting party. But is he also liable to appellant for the injury to his daughter, sustained on account of the defective construction alleged, when neither appellant nor his daughter were parties to the contract? Appellee was not liable under the contract, for the reason that such liability could only exist between the contracting parties. If liable at all, it can only be for the violation of some duty. Faris v. Hoberg, supra; Railroad Co. v. Griffin, supra; Shear. & R. Neg. § 8. The only person to whom appellee owed any particular duty was the one with whom he contracted. State v. Harris, 89 Ind. 363, 365, 366. Appellee was not in possession of the building. The repairs had been completed and accepted long before appellant's daughter was injured. The rule in this class of cases is thus stated in Whart. Neg. (2d Ed.) § 438: “There must be some causal connection between the negligence and the hurt, and such causal connection is interrupted by the interposition between the negligence and the hurt of any independent human agency. * * * Thus, a contractor is employed by a city to build a bridge in a workmanlike manner, and after he has finished his work, and it has been accepted by the city, a traveler is hurt, when passing over it, by a defect caused by the contractor's negligence. Now, the contractor may be liable to the city for his negligence, but he is not liable in an action on the case for damages. The reason sometimes given to sustain such conclusion is that otherwise there would be no end to suits. But a better ground is that there is no causal connection, as we have seen, between the traveler's hurt and the contractor's negligence. The traveler reposed no confidence in the contractor, nor did the contractor accept any confidence from the traveler. The traveler, no doubt, reposed confidence in the city, that it would have its bridges and highways in good order; but between the contractor and the traveler intervened the city, an independent, responsible agent, breaking the causal connection.” In Winterbottom v. Wright, 10 Mees. & W. 109, the plaintiff proved that a mail coach had been defectively constructed; that it was constructed under a contract with the postmaster general; and that, because of its defective construction, plaintiff sustained an injury. And the court denied a recovery upon the ground that the coach maker owed plaintiff no duty. Lord Abinger, in the course of his opinion, said, “Unless we confine the operation of such contracts as this to the parties who entered into it, the most absurd and outrageous consequences, to which I can see no limit, would ensue.” To the same effect was the statement of Justice Clifford in Bank v. Ward, 100 U. S. 195, that “there would be no bounds to actions and litigious intricacies, if the...