H.H. Parker & Bro. v. Hodgson
| Decision Date | 08 June 1911 |
| Parties | H. H. PARKER & BRO. v. HODGSON. |
| Court | Alabama Supreme Court |
Appeal from Circuit Court, Montgomery County; W. W. Pearson, Judge.
Action by H. H. Parker & Bro. against James Hodgson. Judgment for defendant, and plaintiff appeals. Reversed and remanded.
Goodwyn & McIntyre and Mark D. Brainard, for appellant.
Ray Rushton and W. M. Williams, for appellee.
This action is by the appellants against the appellee for damages resulting from the falling of a wall on plaintiffs' property, which, it is claimed, was caused by the negligent manner in which the defendant, an adjoining proprietor, made an excavation of his own premises.
The only insistence of the appellants is that the court erred in sustaining a demurrer to the fourth count in the complaint which was added by amendment. The gravamen of that count is that the defendant "undertook, while so excavating, and so removing said dirt, to support by underpinning the wall on the north side of plaintiffs' store, and immediately next to the hole made by defendant through his agents or servants that defendant, through his agents or servants, did said underpinning in so negligent and careless a manner that as a proximate result thereof a part of the north wall of the store which plaintiff occupied fell," etc.
It is a settled principle of law that the right to lateral support applies to the land in its natural condition, and an adjoining landowner cannot by erecting buildings on the margin of his own land deprive the owner of the attingent lot of the right to excavate his own lot up to the line of his neighbor's property, though on account of the additional burden placed upon the land, by the erection of the house thereon, said house may fall, by reason of the withdrawal of the lateral support. 1 Cyc. 776, 778; Moody v McClelland, 39 Ala. 45, 84 Am. Dec. 770; Myer v Hobbs, 57 Ala. 175, 29 Am. Rep. 719.
It is also a principle, however, that "When a person undertakes an employment, which requires care and skill whether for reward or not, a failure to exert the measure of care and skill appropriate to the measure of such employment is negligence for which an action will lie." 29 Cyc. 425, note 58; Siegrist v. Arnold, 10 Mo.App. 197, 200. It is true that in the case just cited there is the differentiating principle that the traveler committed himself to the care of the owner of the carriage, which raised an obligation to use ordinary care, and, in the cases of persons traveling on free passes by common carrier, the occupation itself raises a duty; but, in cases where no duty to do the act is raised, we understand that, while a volunteer is not responsible for the failure of success of the act...
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Fireman's Fund American Ins. Co. v. Coleman
...of even a voluntary undertaking. Beasley v. MacDonald Engineering Co., 287 Ala. 189, 249 So.2d 844 (1971); Parker & Brothers v. Hodgson, 172 Ala. 632, 55 So. 818 (1911); Coggs v. Bernard, 2 Lord Raymon 909. As was stated by Mr. Justice Cardozo and quoted in Beasley, 287 Ala. at 193, 249 So.......
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St. Louis-San Francisco Ry. Co. v. Wade, LOUIS-SAN
...landowner is laid out in four cases: Moody v. McClelland, 39 Ala. 45 (1863); Myer v. Hobbs, 57 Ala. 175 (1876); H. H. Parker Bro. v. Hodgson, 172 Ala. 632, 55 So. 818 (1911); Nichols v. Woodward Iron Co., 267 Ala. 401, 103 So.2d 319 (1958). An adjoining landowner owes a duty to support his ......
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Massey v. Wright
...have drowned. In Standifer v. Pate, 291 Ala. 434, 282 So.2d 261 (1973), this court quoted with approval from H.H. Parker & Brother v. Hodgson, 172 Ala. 632, 55 So. 818 (1911): [W]hile a volunteer is not responsible for the failure or success of the act done by him, yet if by undertaking to ......
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Beasley v. MacDonald Engineering Co.
...of care and skill appropriate to the measure of such employment is negligence for which an action will lie." Parker & Bro. v. Hodgson, 172 Ala. 632, 635, 55 So. 818, 819. There it was held that while an excavator on an adjoining lot was not under a duty "to brace, underpin or otherwise prot......