Hopkins v. American Pneumatic Service Co.

• Citation: 194 Mass. 582,80 N.E. 624
• Parties: HOPKINS et al. v. AMERICAN PNEUMATIC SERVICE CO.
• Decision Date: 01 March 1907
• Court: United States State Supreme Judicial Court of Massachusetts

194 Mass. 582

80 N.E. 624

HOPKINS et al. v. AMERICAN PNEUMATIC SERVICE CO.

Supreme Judicial Court of Massachusetts, Suffolk.

March 1, 1907

COUNSEL

Frank D. Allen and Lyman K. Clark, for plaintiffs.

Elder & Whitman, Edwin C. Gilman, and James Thomas Pugh, for defendant.

OPINION

KNOWLTON C.J.

This is an action of tort to recover damages to the plaintiffs' building, caused by the defendant in negligently and improperly digging a trench in the cellar of its adjacent house, near the party wall. There are two exceptions for our consideration, one to the instructions of the judge on the question of damages, the other to the admission of testimony.

The jury were instructed that, if they came to the question of damages, the plaintiffs were entitled to recover the difference between the fair market value of the property before the injury caused by the defendant and its market value after the injury. This is the correct rule in cases of this kind. Childs v. O'Leary, 174 Mass. 111 114, 116, 54 N.E. 490; Adams v. Marshall, 138 Mass 228, 239, 52 Am. Rep. 271; Gilmore v. Driscoll, 122 Mass. 199-209, 23 Am. Rep. 312. The cost of restoration of the property to its former condition does not necessarily furnish a true criterion for determining damages. Sometimes to make such a restoration would be an uneconomical and improper way of using the property. It might involve a very large and disproportionate expense to relieve from the consequences of a slight injury. In many cases the cost of repairs would be an accurate measure of the damages. To incur the cost is often the best way of dealing with the property. In the present case evidence was introduced of what this cost would be, and the jury were permitted to consider it in determining the diminution of the market value.

The fact that the source of the injury was the settling of a party wall does not affect the rule of damages in this case. The plaintiffs sought to recover for resulting defects in different parts of the building. There was no error in the instructions.

The original plaintiff, in her declaration, averred that her building was rendered 'unsafe for use and habitation whereby the tenants of the plaintiff were compelled to vacate the said building, and the plaintiff was for a long time unable to rent or lease the same by reason of damaged condition thereof, * * * and, by reason of the reduced value of the plaintiff's said building, the...