Indep. Five & Ten Cent Stores of New York v. Heller

• Decision Date: 28 May 1920
• Docket Number: No. 23214.,23214.
• Citation: 189 Ind. 554,127 N.E. 439
• Parties: INDEPENDENT FIVE AND TEN CENT STORES OF NEW YORK v. HELLER.
• Court: Indiana Supreme Court

189 Ind. 554

127 N.E. 439

INDEPENDENT FIVE AND TEN CENT STORES OF NEW YORK

v.HELLER.

No. 23214.

Supreme Court of Indiana.

May 28, 1920.

Appeal from Circuit Court, Laporte County; James F. Gallagher, Judge.

Action by Adolph H. Heller against the Independent Five and Ten Cent Stores of New York. Judgment for plaintiff, and defendant appeals. Affirmed.

Hubbard & Pettengill, of South Bend, and Osborn & Osborn, of Laporte, for appellant.

Marshall L. Howell, Harry R. Wair, and G. A. Farabaugh, all of South Bend, for appellee.

HARVEY, J.

Appellee was, at the time of the happenings hereinafter described, the lessee and in possession of building No. 116, South Michigan street, South Bend, Ind., and all of the floors of the adjoining building, No. 114, above the first.

Appellant was the lessee of the first floor and basement of No. 114 for use in connection with appellant's business conducted in the adjoining building, No. 112, of which appellant was also the lessee. A party wall between buildings Nos. 112 and 114 was a part of each of said last-named buildings, and was depended upon by each of said parties for support of his leased portion thereof.

Appellant, defendant below, desired to remove said partition, or party wall, between said first floor rooms, in order that it might use the first floors of Nos. 112 and 114 as one salesroom, and desired to cut a door in the foundation wall supporting said party wall for a passageway to and from the basement of No. 114. With the consent of defendant's lessor defendant so did, substituting on the first floor iron columns or posts for the wall removed. When said alterations were practically completed and defendant was moving a portion of its stock of goods into the first floor and basement of No. 114, said partition wall gave way, and the floors of the respective parties supported thereby and the goods of each on said floors were dropped toward, or into, said basement.

The said party wall belonged to plaintiff as lessee so far as support of his leased upper floors of said building was needed; he was in peaceable and lawful possession thereof; and any disturbance thereof to his injury was, so far as appears, unauthorized and wrongful. Defendant had like interest and rights in said party wall, and had the consent of the respective lessors to make therein the said alterations. Its right to make such alterations did not, however, permit it to disturb plaintiff's possession or enjoyment of his leased portion of said wall, or its support.

The foregoing facts are shown by the record to be undisputed. From these facts it follows that when defendant undertook to so change said wall, defendant did so at his own risk; and, if injury to plaintiff's rights and possession, and to his property on the upper floors, proximately resulted therefrom, defendant was chargeable therewith. This is the law, though defendant may have exercised due care in so doing. Cartwright v. Adair, 27 Ind. App. 294, op. 301, 61 N. E. 240;Payne v. Moore, 31 Ind. App. 360, 66 N. E. 483, 67 N. E. 1005;Briggs v. Klosse, 5 Ind. App. 129, 31 N. E. 208, 51 Am. St. Rep. 238; Swentzel v. Holmes (Mo.) 175 S. W. 871, L. R. A. 1915E, 927. See, also, generally upon the proposition 65 L. R. A. 849, note.

Whether defendant's conduct in changing said wall caused the same to collapse, or whether said wall collapsed because of some fact not connected with defendant's work, was a disputed question.

Defendant's first paragraph of answer was a general denial. Upon the issue thus made, as well as the issue made upon the second paragraph, which will be noted later, the cause was tried by a jury, and a general verdict for the plaintiff was found, fixing the amount of plaintiff's damages; and this verdict must be sustained unless during the progress of the trial some harmful error was committed by the court tending to produce said result.

Appellant by its second paragraph of answer set up at length facts by which appellant endeavored to show that said work for appellant upon said wall was done after due care in the selection of an architect to prepare plans and specifications, and after due care in the selection of a contractor to perform said work, and under a contract which constituted the latter an “independent contractor,” and that therefore appellant was not responsible for the results, even though said results were produced by such contractor's negligence.

The much greater proportion of all the questions which appellant presents here are disposed of if it be found that the doctrine of “independent contractor” does not apply under such circumstances. Having determined the nature of appellee's rights in said wall, and having determined that appellant under the undisputed facts had no right to disturb appellee's said possession to his injury, and that he assumed the risk of such disturbance, and the jury having determined that appellant caused by its work said wall to collapse, it is immaterial whether appellant used due care in the prosecution of said work, and it must follow that appellant could not lessen its responsibility by employing a third person as an independent contractor to do said work. Sessengut v. Posey, 67 Ind. 408, 33 Am. Rep. 98. See, also, 14 R. C. L. §§ 24, 26, 30, 35, subject, Independent Contractor.

Proof of the matters set up in said second paragraph of answer does not constitute a defense. Therefore all questions depending upon the sufficiency of the facts alleged in said answer presenting the defense of independent contractor are determined against the defendant. This includes (1) the overruling of defenda...