Julius Keller Const. Co. v. Herkless

CourtCourt of Appeals of Indiana
Citation59 Ind.App. 472,109 N.E. 797
Docket NumberNo. 8647.,8647.
PartiesJULIUS KELLER CONST. CO. et al. v. HERKLESS et al.
Decision Date07 October 1915


Appeal from Circuit Court, Rush County; John D. Megee, Judge.

Action by Arvel R. Herkless and others against the Julius Keller Construction Company and others. From a verdict for plaintiffs, defendants appeal. Reversed, with instructions to grant new trial.George W. Young and James V. Young, both of Rushville, Leo M. Rappaport and Albert R. C. Kipp, both of Indianapolis, and Howard E. Barrett, of Rushville, for appellants. Will M. Sparks and A. L. Gary, both of Rushville, for appellees.


The substance of appellees' complaint is as follows: In 1906, appellant city of Rushville by regular proceedings contracted with appellees to furnish the material and perform the work in the improvement of Arthur street in said city, from Third street north to the corporation line. The work consisted of grading the roadway and surfacing it with broken stone, and constructing cement gutters and stone curbing along the line of the roadway on each side. The cost of the work was to be assessed against the abutting owners as provided by statute.

Appellees, after the work had commenced, were regularly granted extensions of time, within which to complete it; the extended periods expiring September 1, 1908. July 1, 1907, appellees were prosecuting the work, and at that time had completed most of the curbing and guttering, and had graded and surfaced a large part of the roadway. April 23, 1907, appellant city, by regular proceedings, contracted with appellant company for the construction of a sewer system in said city, including a sanitary sewer the entire length of Arthur street. Commencing about July 1, 1907, appellant company, as a part of the work of constructing the sewer on Arthur street, made an excavation the entire length of that street north of Third street, 18 feet deep and 4 feet wide, the west edge of which was within 4 feet of the east edge of the curb and gutter theretofore constructed by appellees, and placed therein a row of 18-inch sewer pipe as required by the contract, and thereupon, using loose dirt, filled the excavation not more than half full, and thereafter did nothing further at the work until April, 1908, all of which was done before appellees had completed their contract. As a result of the manner in which appellant company did its work, the trench caved, causing extensive portions of the completed curb and gutter and the surfacing stone to fall into the excavation, thereby necessitating the reconstruction of parts of the work.

In making the excavations, appellant company at certain points destroyed the grade of the subsoil theretofore prepared by appellees for receiving the broken stone, and mixed loose dirt with the stone with which other parts of the grade had been surfaced, thereby necessitating extra work on appellees' part. As a result of the conduct complained of, appellees were required to restore the work so destroyed, to purchase extra stone, employ additional labor, pay demurrage on cars, retain a large road roller for a time otherwise unnecessary at an expensive rental, as a result of all which, and other injuries specifically alleged, appellees were damaged $3,000, for which they ask judgment.

It is alleged that the acts complained of were done in a careless and negligent manner, and that appellees were not guilty of negligence contributing thereto. The charge against the city is that:

“All the officers and agents of said city of Rushville had full knowledge at the time of the occurrence of all said acts and omissions of said defendant construction company when the same occurred, and then and there did negligently consent to and acquiesce in the same, and did then and there direct said defendant construction company to do said acts.”

[1] The cause having been placed at issue, a trial resulted in a verdict and judgment against both appellants for $2,251.83, from which both appeal. Appellants jointly and also each separately assign error. Appellant company's first assignment is based on the overruling of its alleged motion to require that the complaint be made more specific. At the time when such a motion was filed, and also when it was ruled on, the stockholders of appellant company also were defendants, the cause having been subsequently dismissed as to them. Respecting said motion, we are in harmony with appellees in their contention that, while it appears from the record that such a motion was filed and overruled, it cannot be determined from the record with any satisfactory degree of certainty that appellant company, rather than some other defendant, filed such motion. The assignment under consideration therefore presents no question.

[2] Appellant city seeks to challenge the complaint by an independent assignment of error for insufficiency of facts. This action was commenced in November, 1911, and therefore after the amendment of 1911 to the practice act became effective. Such assignment therefore presents no question for our consideration. Sections 344 and 348, Burns 1914; Combs v. Combs, 56 Ind. App. 656, 105 N. E. 944;Robinson v. State, 177 Ind. 263, 97 N. E. 929.

[3][4] Each appellant challenges instructions 9, 11, and 13. Appellant company challenges also No. 10, and appellant city No. 8. The ninth instruction is as follows:

“I instruct you that municipal corporations are within the operation of the general rule of law, that the superior or employer must answer civilly for the negligence or want of skill of an agent or servant in the course of their employment, by which another is injured. It is essential, however, to establish such a liability that the act or acts complained of must be within the scope of the corporate powers of such municipality. It was within the scope of the corporate powers of the city of Rushville to contract for the construction of a sewer, and I instruct you that if you find that the defendant the city of Rushville did on the - day of April, 1907, enter into a contract with the Julius Keller Construction Company for the construction of the sewer as referred to in plaintiff's complaint, and that said defendant company, pursuant to said contract, constructed said sewer on and along said Arthur street, as alleged in plaintiffs' complaint, and if you further find that in constructing said sewer said defendant company was negligent in any one or more particulars as described in the complaint relative to any one or more of the acts as therein alleged, then not only said defendant company, but also the defendant the city of Rushville, would be liable to compensate the plaintiffs for all damages sustained by them, if any, which are alleged in the complaint, and are shown by a preponderance of the evidence to have been sustained by them as a proximate result of the act or acts so complained of.”

It is urged against the ninth instruction that by it the court instructed the jury that appellants must be held liable for all damages resulting from the work of the construction company, if it should be found to have been guilty of negligence in but one of the particulars specified in the complaint, and regardless of whether such negligence was a proximate cause of all such damage. We do not believe that the instruction is open to this objection. Fairly construed, it is to the effect that, if the construction company was shown to have been negligent in but one of the particulars alleged, appellants were liable for all the damages resulting from such negligence as a proximate cause thereof, alleged in the complaint and established by a preponderance of the evidence; but, if there were other acts of negligence proven as alleged resulting proximately in other injuries alleged and shown by a preponderance of the evidence, appellants were liable for these also.

[5] It is urged against the ninth instruction, also, that by it the court ignored the issue of contributory negligence formed by the complaint and the answers in general denial filed thereto. The court gave no instruction on the subject of contributory negligence. As this case involves a property, rather than a personal, injury, it was incumbent on the plaintiffs, in order that they might be entitled to recover, to prove the allegation of their complaint that they were not guilty of negligence contributing proximately to the injury for which they sought relief. Section 362, Burns 1914; Ft. Wayne Traction Co. v. Monroeville Telephone Co., 179 Ind. 334, 100 N. E. 69.

The substance of the ninth instruction, as related to the matter under consideration, is that, if appellant company was negligent as alleged, both appellants were liable to compensate appellees for all damages alleged in the complaint, and shown by a preponderance of the evidence, suffered by them as a proximate result of such negligence. If, under an assumed state of facts, found to be true, a defendant is liable to compensate the plaintiff in damages, then there should be a verdict to that end. The verdict as matter of course should follow certainly such established liability. The effect of the instruction therefore is to direct the jury to return a verdict for appellees if the facts or elements hypothetically submitted are found from a consideration of the evidence to be true. Goldsmith v. First Nat. Bank, 50 Ind. App. 11, 20, 96 N. E. 503.

It is alleged in the complaint that appellant company by its negligence destroyed a line of cement gutters that appellees had constructed under their contract. Appellees, in support of such allegation, introduced evidence tending to establish that by reason of the negligent operations of appellant company several hundred feet of cement gutters along the east line of the roadway was damaged, and that a portion of it was caused to cave into the sewer excavation, and was thereby destroyed, and that as a consequence appellees were compelled to...

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