Murray Meat & Livestock Co. v. Newhouse Realty Co.

• Decision Date: 16 February 1916
• Docket Number: 2842
• Citation: 47 Utah 622,155 P. 442
• Parties: MURRAY MEAT & LIVE STOCK CO. v. NEWHOUSE REALTY CO. et al
• Court: Utah Supreme Court

155 P. 442

47 Utah 622

MURRAY MEAT & LIVE STOCK CO. v. NEWHOUSE REALTY CO. et al

No. 2842

Supreme Court of Utah

February 16, 1916

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Action by the Murray Meat & Live Stock Company, a corporation against the Newhouse Realty Company, a corporation, and others.

Judgment for plaintiff against defendants Schravens. Defendants appeal.

AFFIRMED.

Jones Brown & Judd for appellants.

Hurd &amp Hurd for respondent.

STRAUP, C. J. FRICK and McCARTY, JJ., concur.

OPINION

STRAUP, C. J.

The plaintiff and the defendant Newhouse Realty Company are the owners of adjoining lots in the business district of Salt Lake City. The plaintiff has a warehouse and meat refrigerator plant on its ground, the north wall of which is near on the division line of the two lots. As alleged by the plaintiff, the defendants, in making excavations on the realty company's property to erect a building thereon, negligently removed earth near and underneath the wall of plaintiff's building and injured it. Both defendants deny the alleged negligence. The realty company pleaded that its codefendants were independent contractors who, as such, made the excavations. The Schravens pleaded a counterclaim, in which they alleged that they had notified the plaintiff of their intention to make the excavations and warned it to protect its building and wall, but that it neglected to do anything in such respect, whereupon the Schravens themselves protected the wall by shoring, bracing, and propping it, for which they ask reasonable compensation. The case was tried to the court and jury, who rendered a verdict in plaintiff's favor for $ 650 against the defendants Schravens only. They appeal.

After stating that the plaintiff's right to recover was predicated on negligence, and after defining negligence, the court charged the jury:

"7. You are instructed that the owner of land can lawfully excavate up to the line thereof, although such excavation may endanger a building situated upon the adjoining land; but it is the duty of the owner before making such excavation to give to the owner of the adjoining land notice of his intention to make such excavation a sufficient time before commencing to enable such person to take such precautions for the protection of his building as may be reasonably necessary, and it is also the duty of the person making such excavation to use ordinary care, skill, and caution to prevent injury to the building upon the adjoining land; and if the owner making such excavation gives such due and timely notice to the owner of the adjoining land, and exercises ordinary care, skill, and prudence in making such excavation, he is not liable for any damages resulting therefrom to the building upon the adjoining premises; but, if he should fail to give such notice, or should fail to exercise ordinary care, skill, and prudence in making such excavation, and such failure is the proximate cause of injury and damages to the adjoining buildings, then he would be liable for such damage.

"8. You are instructed that where one about to make an excavation notifies the adjoining landowner of such intention, and the adjoining landowner refuses or neglects to take the necessary steps to protect his building, such refusal and neglect does not excuse nor relieve the person making the excavation from the duty of exercising ordinary care, skill, and prudence in making the same; but, notwithstanding such neglect on the part of the adjoining owner, the person making the excavation would be liable for any and all damages which proximately resulted from any acts of negligence in making such excavations."

"11. You are instructed that as a matter of law the defendants J. F. and H. E. Schraven are not, under the evidence in this case, entitled to recover upon their counterclaim against the plaintiff, and you cannot therefore find any verdict for said defendants thereon; and you are also instructed that the plaintiff is not entitled to recover against the Newhouse Realty Company, and you cannot therefore find any verdict for the plaintiff against said defendant.

"12. If you should find for the plaintiff, you should award it such amount as from the evidence you may find its building, together with its refrigerating plant and machinery installed therein, was damaged, by any negligent acts of the defendants J. F. and H. E. Schraven in making the excavation complained of."

The only exception to these instructions by the appellants is:

"We reserve an exception to paragraphs 7, 8, 11, and 12 of the charge of the court as given."

Attempts however, are made to complain of all of them, except No. 8. They relate to separate and distinct propositions. The exception is general as to all of them, and, under the repeated rulings of this court (Farnsworth v. U. P. Coal Company, 32 Utah 112, 89 P. 74, and cases there cited), is of no avail, unless the whole of all of the specified instructions is bad. Confessedly 8 is good, for, while it is assigned, yet nothing is urged against it. But it is earnestly urged that 11 is bad. Let us look at it. It itself contains two separate and distinct propositions: One, that the Schravens are not entitled to recover on their counterclaim; the other, that the plaintiff is not entitled to...