Probst v. Hinesley

• Citation: 133 Ky. 64,117 S.W. 389
• Parties: PROBST et al. v. HINESLEY. HINESLEY v. BEATTIE et al.
• Decision Date: 24 March 1909
• Court: Court of Appeals of Kentucky

117 S.W. 389

133 Ky. 64

PROBST et al. v. HINESLEY.

HINESLEY v. BEATTIE et al.

Court of Appeals of Kentucky.

March 24, 1909

Appeals form Circuit Court, Jefferson County, Common Pleas Branch Second District.

"To be officially reported."

Action by George W. Hinesley against Lawrence Jones, the Jefferson Realty Company, Mrs. Pamela Beattie, John Hoertz and others. From a judgment against certain defendants, including Herman Probst, they appeal, and plaintiff prosecutes a cross-appeal from judgment in favor of Mrs. Pamela Beattie and John Hoertz. Affirmed on both appeals.

O'Neal & O'Neal, for appellant Probst.

W. W Watts and Kohn, Baird, Sloss & Kohn, for appellant Jefferson Realty Co.

M. A D. A. & J. G. Sachs and Augustus E. Willson, for appellee Hinesley.

Clem W. Huggins, for appellee Hoertz.

Wallace A. McKay, for appellees Galvin & Fox.

C. B. Seymour, for appellee Beattie.

CLAY. C.

Lawrence and Saunders Jones were the owners of a lot situated on the southwest corner of Fourth and Jefferson streets, in the city of Louisville, upon which stood the Masonic Temple building. In November, 1903, the improvements on this lot were destroyed by fire. The old walls were torn down, and the property remained vacant until October, 1905. In the meantime the Joneses conveyed the lot to the Jefferson Realty Company. In the fall of 1905 the Jefferson Realty Company entered into a contract with certain persons for the erection of a large building on the lot. The building is now known as the "Paul Jones building." Galvin & Fox were the contractors who undertook to clean off the premises and remove the débris and foundation walls of the destroyed building. Another contract was made by the Jefferson Realty Company with Herman Probst to do certain work in connection with the erection of the building. Probst then subcontracted with Galvin & Fox to dig the trenches and do part of the general excavating for the new building. Mrs. Pamela Beattie owned the house and lot adjoining the old Masonic Temple on the west. The house thereon was occupied and used by George W. Hinesley as a restaurant. This restaurant was known as the "English Kitchen." Notice in writing was served upon Mrs. Beattie, the owner, giving full details of the nature and character of excavating that would be done upon the Paul Jones property, and the time when the work would begin. Mrs. Beattie in turn notified Hinesley. When the west wall of the Masonic Temple had been removed, the wall of the English Kitchen was left exposed. The earth beneath was soft and the foundation extended to a depth of only three feet. Mrs. Beattie, after conference with Hinesley, employed Kenneth McDonald, Jr., as architect to make plans and specifications for the underpinning of her east wall. Plans were drawn, and the contract for this work let to Galvin & Fox, who in turn sublet the contract for the masonry part of the underpinning to John Hoertz. The excavating on the Paul Jones lot was made to a depth of 19 feet below the street level. Below this level 60-odd pier pits were dug; each pit being about 14 feet wide and 27 feet 10 inches deep. After the work had progressed to some extent, it was found that part of the excavating called "pier pits," though made according to plans and specifications, were not deep enough, and the contractor, Probst, was directed by the architect of the Jefferson Realty Company to make them deeper by blasting them out with dynamite. This blasting was done by Probst, and lasted for four or five days. While the work of excavating and underpinning was going on, the walls of the English Kitchen cracked and bulged out and pulled away from the rafters. Sometimes part of the ceiling would fall on guests who were at dinner in the restaurant. Soon thereafter the building was condemned by the authorities of the city of Louisville and ordered to be torn down. At this time Hinesley had a lease on the premises in question, which extended to July, 1906. He vacated the building on January 15, 1906.

On February 6, 1906, Hinesley instituted this action against the defendants Lawrence and Saunders Jones (who were dismissed on peremptory instructions), the Jefferson Realty Company, Herman Probst, Galvin & Fox, Pamela Beattie, and John Hoertz. The petition charges that the work of excavating, removal of earth, and underpinning, made and undertaken by the defendants, were from their very character a nuisance and dangerous to the house and premises under lease and occupied by plaintiff. The petition then charges that the damages to plaintiff were caused by said excavation and underpinning, and the careless and negligent manner in which said excavation and underpinning were done by defendants. Negligence was denied by all the defendants, and the realty company and Mrs. Pamela Beattie also entered a plea of nonliability because the work was done by an independent contractor. Trial before a jury resulted in a verdict in favor of Hinesley, against the Jefferson Realty Company, Herman Probst, and Galvin & Fox, for the sum of $2,500, and judgment was entered accordingly. There being no finding against Mrs. Beattie and John Hoertz, judgment was entered in their favor. From this judgment the Jefferson Realty Company, Herman Probst, and Galvin & Fox prosecute this appeal, and George W. Hinesley prosecutes a cross-appeal as to Mrs. Beattie and John Hoertz.

It would extend this opinion to too great length to set out in detail the various questions raised on the appeal. We shall briefly discuss those that we deem necessary to consider.

As the petition charged that the excavation was done to a depth of 19 feet, and subsequently, in reference to the damage sustained, spoke of said excavation, and as the blasting was done at a depth greater than this and was only for the purpose of removing the foundations after they had been found to be of insufficient depth, it is insisted that the court improperly received testimony on the question of blasting and improperly submitted this question to the jury. We cannot accede to the view that the evidence of excavations to a depth greater than 19 feet should have been excluded because the petition spoke of excavations made only to that depth. This would be taking entirely too narrow a view of the allegations of the petition. The petition charges, not only that the excavation was of such a character as to constitute a nuisance, but that it was negligently and carelessly done. Under these circumstances, we think any evidence of the manner in which it was done and the dangerous character of the means employed was perfectly proper. Indeed, the questions of blasting, and of whether or not it was done with ordinary care, and the question of underpinning, were the only ones submitted to the jury. Appellants could not have been surprised by the evidence in regard to the blasting, for some time prior to the trial a deposition was taken, in which the matter of the blasting was fully gone into and discussed. A very sharp issue was made as to whether or not any of the damage was done by blasting. The testimony for Hinesley was to the effect that whenever a blast took place the house was violently shaken, and the ceiling fell on his guests. The shock from the blast was also felt some distance away. The testimony for the defendants was to the effect that only small quantities of powder were used in the blasting,...