Huber v. H. R. Douglas, Inc.

• Decision Date: 22 December 1919
• Citation: 94 Conn. 167,108 A. 727
• Court: Connecticut Supreme Court
• Parties: HUBER et al. v. H. R. DOUGLAS, Inc., et al.

108 A. 727

94 Conn. 167

HUBER et al. v. H. R. DOUGLAS, Inc., et al.

Supreme Court of Errors of Connecticut.

December 22, 1919

Appeal from Superior Court, New London County; Gardiner Greene Judge.

Action by Peter F. Huber and others against H. R. Douglas Incorporated, and another. Judgment for plaintiffs against named defendant, and named defendant appeals. No error.

The complaint named two defendants, Marsh, the owner of the building referred to as the " Marsh Building," and H. R. Douglas, Incorporated, a concern which under contract with Marsh demolished and removed his building. The first of three alternative counts alleges in substance that the plaintiffs, as dealers in dry goods and similar merchandise were for a long time the occupants of certain premises on State street in New London, under a lease with the owner Mary L. Cady, of Brookline, Mass.; that Marsh had for more than a year owned the adjoining premises on the east, when, about the 1st of May, 1916, Douglas, Incorporated, began the demolition and removal of the Marsh building. The brick buildings then standing on both properties had been there for more than 70 years, and were so built and maintained that for all that period " the westerly wall of said Marsh building and the easterly wall of said Cady Building were adjacent and contiguous, the bricks on the face of the westerly wall of said Marsh building being laid up against and in contact with the bricks on the face of the easterly wall of said Cady building." The work of demolition continued until the Marsh building was entirely removed, the removal of its west wall being completed about June 1, 1916. The removal of the wall was " negligently and carelessly" done, " without providing any suitable or proper protection for the support of" the Cady wall " by way of bracing or shoring the same with timbers, or in any other manner attempting to do any acts to prevent" its collapse. The Cady wall thereafter remained " without support or protection of any kind" until June 20, 1916, when it collapsed, and caused the destruction of the entire Cady building. During this period that elapsed after the last of the Marsh wall was taken away, and until the collapse of the Cady building, the east wall of the latter " was obviously in a weakened and dangerous condition," and that, having " become, to a large extent, dependent upon the support furnished by the Marsh building," the removal of the Marsh wall left the Cady wall " likely to collapse and fall unless some proper protection was given to it." Although all this was or should have been well known to the defendants, they not only allowed the Cady wall to remain in this unprotected condition, but " wrongfully, carelessly, and negligently made excavations" on Marsh's property within 5 feet of the foundation of this Cady wall. The soil at that point was sandy " and of such a treacherous and unsafe character that excavations made in said soil within 5 or 6 feet of the place where said soil was sustaining the great weight and pressure of supporting said easterly wall of said Cady building would easily cause said soil to shift, slip, and move into said excavations, thereby removing the support afforded by said soil to the foundation of said easterly wall of said Cady building." While the work was in progress the plaintiffs gave notice to Marsh's architect and agent, " who had the supervision of the work for Marsh," of the dangerous and weakened condition of the Cady wall, and gave notice to the same effect to H. R. Douglas, president of H. R. Douglas, Incorporated, who " agreed with the plaintiffs to perform whatever acts that might be necessary to properly protect and support said Cady building and to prevent said easterly wall from collapsing." Reasonable and proper care by Marsh for the protection of the Cady property, in planning the work upon his own, would have prevented the injuries to the plaintiffs, which were due to the method employed by the Douglas Company in carrying out the work pursuant to Marsh's instructions. The collapse of the building was " in consequence and as a direct result of the injurious, wrongful, and negligent acts of the defendants, as hereinbefore recited," and the plaintiffs were damaged by the destruction of their property, the interruption of their business, and the loss of the unexpired part of their lease, to an amount of more than $30,000.

The second count rests a claim for the same damages upon the substantial allegations that the Cady building as originally constructed was made to depend largely upon the support afforded it by the building which later became the property of Marsh; that this construction was with the knowledge and acquiescence of the then owners of the supporting building, and that this use of the Marsh wall had thereafter continued openly and under a claim of right for more than 70 years, until the wrongful removal of the Marsh wall caused the Cady building to collapse.

The third count alleges that when the Cady building was constructed, both properties were under one ownership, and that the lateral support which the so-called Marsh, building was made to furnish the Cady building became and remained a right appurtenant to the latter building. Under this count the same damages were claimed from the collapse of the Cady building by the wrongful removal of the Marsh wall in violation of this right.

Issue was joined by the denial of the essential allegations of each count, and the answer of Marsh also averred that the position of the other defendant was that of an independent contractor. Upon a trial to the jury the plaintiffs claimed to have proved, in addition to or in support of the allegations of the complaint, these facts: When the Cady building was constructed, the common owner of that and the adjoining Marsh building remodeled the latter, and in the construction work of the former erected a 16-inch solid brick bonded wall, extending along the full length of the Cady building, resting on a foundation wall of stones of such size and so laid that some of them extended under the full width of the wall. This wall, in its full width, extended up 9 feet to the Cady building's second story, and above that, to the top of the easterly wall of the Cady building, it was 8 inches thick. At the top of the 16-inch section of the wall, the sill of the Marsh building rested upon the easterly half of it; and there were inserted into it, from the foundation to the top of the 16-inch section, uprights which were a part of the Marsh building construction. From the second floor of the Cady building to the top, the studding of the Marsh building was in most places against the 8-inch wall of the Cady building, and 4 inches of brick and mortar had been placed between the studding, so as to be, for the most part, in contract with the 8-inch Cady wall. In removing this studding upon the demolition of the Marsh building, most of this brick and mortar adhered to the wall, " so that it had to be hammered and broken away, and removed by tools." All of it down to the Cady building's second floor was removed after the Marsh structure had been taken down, and this work of hammering and breaking away left the Cady wall in a roughened and dangerous condition, and weakened it by thus loosening the lime and mortar between the bricks. The defendants took no precautions for the safety of the Cady building, " either by shoring up the easterly wall, or otherwise."

One H. R. Douglas was president and manager of the Douglas Company, was in charge of its work on the Marsh property, and had full power to bind the company in relation thereto. On June 14, 1916, the plaintiff Huber, acting also for the owner of the Cady building, had an interview with Douglas concerning the protection of the Cady building, and Douglas, as manager, agreed that the company would look out for and protect the building.

After the removal of the Marsh structure, but before the hammering away of the brick and mortar referred to, the defendants made extensive excavations all over the Marsh property, so that the general level of their depth was below the level of the foundation stones referred to, and after permitting these excavations to remain for 18 days in the sandy soil of the Marsh land, the defendants dug a trench, 2 feet wide and 2 feet deep, parallel with the wall, and from 3 to 5 feet away from it. This was allowed to remain open 2 days during a heavy rainfall, and its depth in some places was more than 3 feet below the level of the foundation wall referred to. When the building collapsed, the foundation stones supporting the 16-inch divisional wall moved easterly a distance of 5 feet into these excavations. The collapse of the Cady wall was caused by the removal of the lateral support of the soil on the Marsh property, which caused the soil under the divisional wall to move, causing the slide of the foundation stones into the excavations referred to. The manner in which the work of taking down the Marsh building and in removing the 4 inches of brick and mortar from its contact with the Cady wall were unusual and dangerous, and ordinary care was not exercised by the Douglas Company for the protection of the Cady building, while the plaintiffs were free from any negligence contributing to the collapse of the building. The divisional wall was so constructed that the dependence of that part of it on the Cady side of the line, upon the portion on the Marsh side, was apparent to ordinary observation. Neither the plaintiffs nor the nonresident owner of the Cady property were notified in advance that the Marsh building was to be removed, or that any excavations were to be made on the Marsh land, or that the division wall between the buildings was to be disturbed, and...