Dollman v. Pauley

• Decision Date: 12 February 1931
• Docket Number: 25133.,Nos. 12264,s. 12264
• Citation: 174 N.E. 729,202 Ind. 387
• Parties: DOLLMAN v. PAULEY.
• Court: Indiana Supreme Court

202 Ind. 387

174 N.E. 729

DOLLMAN

v.PAULEY.

Nos. 12264, 25133.

Supreme Court of Indiana.

Feb. 12, 1931.

Appeal from Superior Court, Marion County.

Action by Henry Dollman against Charles E. Pauley. Judgment for defendant, and plaintiff appeals.

Reversed with directions.

Roemler, Carter & Rust, of Indianapolis, for appellant.

Matson, Carter, Ross & McCord and Lewis A. Coleman, all of Indianapolis, for appellee.

TRAVIS, J.

Appellant predicates his action against appellee upon two paragraphs of complaint; the first paragraph upon breach of contract, the second paragraph upon tort, both of which complaints were founded upon injuries to property.

Appellant alleged by his first paragraph of complaint that he owned a four-story brick building which is used for business purposes, and the real estate upon which this building rested. Appellee undertook to erect a four-story reinforced concrete building on his land which was south of and adjacent to appellant's land and building. To construct appellee's building it become necessary to excavate alongside the foundation of appellant's building and land. The excavation for appellee's building was made to a depth of more than ten feet, measured from the established grade for dwellings, flats, and apartment houses. At the time appellee made the excavation on his land, there was in force an ordinance in the city of Indianapolis which provided:

“The legal depth for excavations to the bottom of footings shall be seven feet for dwelling, Flats and apartment houses, and ten (10) feet, for all other buildings to be measured from the established grade for dwelling flats and apartment houses and from the curb level at center of the main front of buildings on the property line of all other buildings but in no case shall said excavation be less than seven feet below the floor joists of dwellings, flats and apartment houses or eight feet below the curb level, of other building. (b) Whenever an adjacent excavation shall be carried to a greater depth than the legal seven feet or ten feet depth above given, it shall be the duty of the person making or causing such excavation to be made to preserve any contiguous wall or walls from injury and protect and underpin the same below the legal seven or ten feet depth at his own costs and expense so that said wall or walls shall be and remain practically as safe as before such excavation was commenced. (c) He shall give timely written notice of adjoining property owners of his intention to do and the adjoining property owners shall permit the occupancy of their grounds, or any buildings so that their walls may be underpinned and sustained. (d) If such contiguous wall or walls is not carried to a greater depth than the legal seven or ten foot depth above given the owner or owners of such adjoining or contiguous wall or walls shall preserve their walls from injury and so sustain, protect and underpin the same at their own cost and expense to the legal seven or ten foot depth that the said wall or walls shall be and remain as safe as before such excavation was commenced. And said owner or owners of adjoining or contiguous wall or walls shall be permitted to enter upon the premises where such excavation is being made for that purpose when necessary.”

Appellee gave timely written notice to appellant of his intention to excavate; but before excavating, the question of the respective liabilities of the parties in relation to the protection of appellant's wall, upon mutual consideration, resulted in an agreement between them that appellant should pay to appellee the sum of $300 after the work was done by appellee, in consideration of which appellee agreed to do all things necessary to protect appellant's wall by reason of appellee making the excavation; and in the performance of the work appellee agreed to underpin and otherwise protect appellant's wall, so that appellant's building would not in any wise be injured or damaged by making the excavation. In making the excavation and in performing the work to protect appellant's wall, appellee performed such work in such way that appellant's wall was not protected, and by reason thereof the wall settled, the foundation of the building settled, and the building settled, as the result of which the walls of the building were cracked and strained, the front of the building was thrown out of line and position, and the building injured generally so that it tended to spread apart. To prevent the spreading apart of the building, appellee placed iron rods through it from one side to the other, so constructed that they could be tightened to hold the walls together. These rods injured the building. All of this work was done by appellee in the manner alleged without the knowledge or consent of appellant. Because of the work done by appellee, and the manner of doing such work, as alleged, appellant's building was greatly injured and damaged to appellant's loss and damage in $4,000.

The second paragraph of complaint is the same as the first paragraph, with the additional allegations that appellant's building had a basement, and that appellee decided to construct his building with a basement under the entire building, and to construct it so that the foundation thereof on the north side would be adjacent to and connected with the foundation of appellant's building, and that the excavation for the foundation and for the basement of appellee's building would extend to the foundation of appellant's building. The second paragraph of complaint, instead of quoting the section of the ordinance, states its provisions generally. The agreement alleged is that appellant should not do anything to protect the foundation of the building, that appellee would do for appellant anything necessary to protect the foundation of appellant, so that it would remain intact, and not in any wise be damaged by reason of the excavation to be made and the construction of the foundation and the building of appellee alongside appellant's building; and that appellant employed appellee to do all of said things. Appellee undertook the construction of the basement and building, and did construct them. In doing so, appellee excavated the earth on the ground adjacent to appellant's building to the foundation wall of appellant's building, and did undertake to underpin and protect appellant's foundation so that it would not settle, would remain in place, and the building in no wise be injured in the performance of the work by appellee on his real estate. In doing this work of protecting appellant's building and foundation, appellee did it negligently in a manner that did not protect appellant's building and foundation, by excavating underneath appellant's foundation, and took the material from underneath it, and did not underpin the same and make it so that it would not settle; and as a result thereof the foundation did settle, etc., to appellant's damage.

To the complaint appellee (defendant) filed a general denial, and also a cross-complaint, by which appellee alleged that appellant and this appellee entered into a verbal contract by the terms of which...