Murray v. Patterson

• Decision Date: 17 February 1934
• Parties: MURRAY v. PATTERSON et ux.
• Court: Tennessee Supreme Court

72 S.W.2d 558

MURRAY v. PATTERSON et ux.

Court of Appeals of Tennessee, Middle Section.

February 17, 1934.

Certiorari Denied by Supreme Court June 23, 1934.

Appeal in Error from Circuit Court, Giles County; W. B. Turner, Judge.

Action by Mrs. Susie L. Murray against C. B. Patterson and wife. Judgment for plaintiff, and defendants appeal in error.

Affirmed.

D. R. Wade, of Pulaski, for plaintiffs in error.

R. E. Lee and Bennett Eslick, both of Pulaski, for defendant in error.

FAW, Presiding Judge.

On a former day of the term the judgment of the trial court in this case was affirmed for the reason that, as it then appeared to the court, the bill of exceptions was not signed by the trial judge, and all of the assignments of error depended upon matters which it was necessary to preserve by bill of exceptions.

In due season, the plaintiffs in error, Patterson and wife (the defendants below, and hereinafter called defendants), filed a petition for a rehearing, accompanied by affidavits from which it appears to our satisfaction that, although the trial judge did not sign the bill of exceptions at the place manifestly prepared, according to the usual form, for his signature, he had signed it on the following page, at the foot of an additional recital in the form of a minute entry under the style and docket number of the case, with the understanding that he was signing the bill of exceptions, that the aforesaid recital in the form of a minute entry was not intended as such and was not entered on the minutes, but was in fact "a component part" of the bill of exceptions, and that the Trial Judge signed at the place where his signature appears, with the intention and for the purpose of authenticating the entire bill of exceptions. The petition for a rehearing is therefore granted, our former judgment of affirmance is vacated and set aside, and the cause will now be considered upon the entire record, including the bill of exceptions, assignments of error, briefs, and oral arguments of counsel heretofore heard at the bar.

The defendant in error, Mrs. Susie L. Murray (plaintiff below, and hereinafter called plaintiff), and the defendants, C. B. Patterson and his wife, Mrs. Nora Franks Patterson, were, on March 7, 1930, and for some years theretofore, the respective owners of two adjoining brick buildings, with the land upon which they stood, situated on the south side of the public square in the town of Pulaski, Tenn., between which buildings there was a party wall standing in part on the land of plaintiff and in part on the land of defendants and supporting the floors and roof of each of said buildings.

On October 2, 1929, the entire inside of defendants' building, then equipped and used for the purpose of a "picture show" was destroyed by fire, leaving the walls standing. In February, 1930, defendants began the reconstruction of the interior of their building, and, about 1 or 2 o'clock in the morning of March 7, 1930, a considerable part of the aforesaid party wall fell, and this action was thereafter brought by plaintiff, Mrs. Murray, against defendants, Patterson and wife, to recover damages for the injuries to her building resulting from the collapse of said wall.

The respective buildings of plaintiff and defendants had a frontage of approximately 20 feet each on the south side of the public square, and the defendants' building (to which we will refer as the Patterson building) was on the west side of the plaintiff's building (to which we will refer as the Murray building). The Murray building extended back southward 165 feet to an alley, but from the front to a depth of 100 feet it was a two-story building and for the remaining 65 feet to the alley it was a one-story building. The Patterson building was a two-story building.

After averring, in substance, the facts which we have already stated, plaintiff's declaration proceeds and concludes as follows:

"Plaintiff further avers that said Pattersons after said fire, began certain excavations within their walls for the purpose of reconstructing their building, and in making said excavations, without the knowledge or consent of plaintiff, removed the dirt which formed the lateral support of said party wall from the west side of said wall for the purpose of sloping the floor in their building from the front toward the rear; that said Pattersons cut away and removed all of said dirt from the west side of said party wall and undermined said party wall for the purpose of putting in pillars for the support of said sloping floor, said excavation being made to a depth of several feet below the bottom of said party wall.

"Plaintiff avers that said excavation was done in a negligent, reckless, careless, and unskilled manner, and, because of the removal of said lateral support in the manner aforesaid by the defendant Patterson, and in the failure of the defendant Patterson to properly support said wall before the removal of said lateral support, said party wall for a distance of about 100 feet beginning at about 60 feet from the front, collapsed for approximately the entire distance of said excavation. Throughout the length of said excavation where said dirt had been removed, the said wall fell in upon the building of plaintiff, absolutely destroying plaintiff's building in the rear for a distance of approximately 100 feet.

"Plaintiff further avers that the front of said party wall in length about 65 feet where no excavation was made did not collapse and still remains standing. Plaintiff therefore avers that the collapse of said party wall, which resulted in the absolute destruction of about 100 feet of plaintiff's building, was caused by the gross negligence and carelessness of defendants in making said excavation and removing said lateral support and in undermining said party wall without the knowledge and consent of plaintiff, and that the action of the defendants Patterson in making said excavation, removing said lateral support, and undermining said wall was the proximate cause of the collapse of said wall and the proximate cause of the injury and damages to plaintiff's building and the destruction thereof. Plaintiff, therefore, avers that as a result of said negligence and carelessness of defendants Patterson her said building was almost destroyed and greatly damaged, and she, therefore, sues the defendants for said sum of $10,000.00 as damages, and demands a jury to try this cause."

Defendants pleaded the general issue, not guilty, and also filed a "plea in abatement," in which latter plea they averred that, since the filing and service of the original summons in this cause, the plaintiff, Mrs. Susie L. Murray, has sold, transferred, and conveyed unto B. F. McGrew all right, title, and interest which plaintiff had in the subject-matter of this lawsuit, and has transferred and conveyed unto B. F. McGrew the real estate to which the alleged injuries were done, together with all her interest therein, and that there was sold, by said conveyance to the said B. F. McGrew, plaintiff's alleged right of action, if any, the subject-matter of this lawsuit, and the same should therefore be abated.

The plaintiff joined issue upon said "plea in abatement."

Defendant Mrs. Nora Franks Patterson also filed a special plea that, at the time of the injuries complained of in plaintiff's declaration, she owned no part of the lot and building adjoining that belonging to Mrs. Susie L. Murray and had no interest in the alleged alterations made in the picture show building or lot, that she did not make said alterations or changes and did not authorize or direct that same be done, and therefore could not have caused the injuries complained of in plaintiff's declaration; but the defense thus pleaded by Mrs. Patterson has not been relied upon in this court, and need not be further noticed.

The case was tried to a jury, and the jury found the issues in favor of the plaintiff and assessed her damages at $1,500, and judgment of the court was entered in accordance with the verdict. A motion for a new trial was made and overruled, and the defendants excepted to the action of the trial court and appealed in error to this court and have assigned errors here.

The defendants have filed assignments of error numbered from 1 to 15, inclusive, but several of these assignments assert, in diverse forms, that the evidence preponderates against the verdict of the jury. Such assignments present no question which this court can consider. It is obvious that the plaintiff's declaration states a good cause of action, and there is no claim to the contrary. If there is any evidence reasonably tending to prove the material averments of the declaration, the verdict of the jury, approved by the trial judge, is conclusive in this court, and we must disregard all countervailing evidence. The verdict of the jury has settled all conflicts of testimony in favor of the plaintiff, and the plaintiff is entitled to the benefit of all legitimate inferences favorable to her which the jury could reasonably draw from the evidence tending to support the averments of the declaration.

The rules just stated have been announced so many times, in published opinions of the Supreme Court and of this court, that we deem it unnecessary to cite the cases.

The seventh, eighth, ninth, and tenth assignments must be disregarded because of their utter nonconformity with the published rules governing assignments of error. These assignments are as follows:

"7. Because the evidence of the witness Waller was incompetent and was permitted to go to the jury over the exceptions of the defendants.

"8. Because the verdict of the jury was influenced and brought about by the opinions given by the witness Waller, which was incompetent and which was admitted over defendant's exceptions.

"9. Because the opinion evidence of the witness Waller was incompetent, not being based upon either facts or observation to substantiate the same.

"10. ...