Regan v. Keyes

• Decision Date: 07 January 1910
• Citation: 90 N.E. 847,204 Mass. 294
• Parties: REGAN v. KEYES.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

204 Mass. 294

90 N.E. 847

REGAN v. KEYES.

Supreme Judicial Court of Massachusetts, Suffolk.

January 7, 1910

Jan. 7 1910.

COUNSEL

F. H Chase, for plaintiff.

Joseph Cavanagh, for defendant.

OPINION

LORING J.

We are of opinion that there has been a mistrial in this case.

Before October 14, 1901, the defendant in this action had made a general contract with the owner of a parcel of land on the corner of Lewis and Marginal streets in East Boston to erect on it a seven-story warehouse in accordance with drawings and specifications by certain architects therein named.

By a contract dated October 14, 1901, the plaintiff agreed to do all the work of excavation called for by the defendant's contract with the landowner in accordance with the drawings and specifications of the architects as there set forth, which drawings and specifications were made part of the contract between the plaintiff and the defendant.

It is stated in the bill of exceptions that 'on or about November 30, 1902, and while the plaintiff was still carrying on the work of excavating, several 'cave-ins' occurred and the side of the lot fronting on Lewis street needed supporting in order to hold the sidewalk and to prevent injury to the compressed air plant and the water and gas mains and sewer in the street.' We assume that November 30, 1901, not November 30, 1902, is the date here intended. On December 20, 1901, it was agreed between the plaintiff and defendant that the plaintiff should stop work and that the defendant should complete the excavation at the plaintiff's expense.

It is also stated in the bill of exceptions that, 'at the date of the contract between the plaintiff and defendant,' there were in Lewis street: (1) A compressing air plant used in the construction of the tunnel to East Boston under the harbor; (2) a large water main which supplied East Boston with its water supply; (3) a large trunk line sewer; and (4) gas mains. It is further stated in the bill of exceptions that the compressing air plant was a large one, consisting of buildings and machinery, and 'was of great weight and was liable to be seriously damaged by any 'cave-in' in the lot which was being excavated.'

The defendant's evidence tended to show 'that it was impossible to carry on the work any further unless sheet piling was driven or a bulkhead was constructed immediately'; and 'that the engineer and architect in charge of the work, and also the engineers in charge of the tunnel construction, gave notice to the defendant that sheet piling should be driven or a bulkhead built at once, and threatened to secure an injunction against the prosecution of the defendant's work unless the same was attended to; that the defendant requested the plaintiff to build the bulkhead, urging the immediate necessity therefor, and on the plaintiff's refusal so to do, the defendant caused the bulkhead to be built at a cost of $457.' It appears from other parts of the bill of exceptions and from other papers before us that the cost of the bulkhead was $467, not $457.

The plaintiff testified that he understood that the bulkhead was put in 'so as to prevent, so that the delicate air compressing machinery would not be jarred, that furnished the air for the tunnel under the river, and if that should be jarred a large number of men would be in danger.'

At the trial the defendant asked for a ruling 'that the defendant should be allowed the cost of building the bulkhead on the Lewis street front if the same was necessary to protect the street or sidewalk and prevent them from falling in, or if the same was necessary to protect the water mains or sewers or tunnel or compressed air plant in the street, or if the same was necessary in order to comply with the provisions contained in the specifications accompanying the contract between the defendant Keyes and the National Dock & Warehouse Company.'

The presiding judge told the jury that the right of lateral support which one landowner owes to another is the support of the land in its natural condition, and that in the case at bar it was the plaintiff's duty to take all reasonable and proper precautions to prevent injury to other people's land or to the street in front of his lot.

At the close of the charge the learned counsel for the defendant took an exception to that portion of the charge which dealt with the duty of holding up the adjoining land without structures on it, and asked the judge to rule 'that everything in that street in the way of work, tunnel, water main, should be held up, and that Keyes or Regan was under a liability to hold these things in place, and, if the necessity of a bulkhead was reasonable in view of what was in the street in the way of public improvements, public necessities, he was obliged to hold them up by a bulkhead if a bulkhead was necessary.' This was refused and an execption was taken. An exception was also taken to the judge's refusal to give the ruling asked for.

The jury found for the plaintiff 'in the sum of $628.80, with interest at 6 per cent. from September 1, 1902, amounting to $238.60; total verdict $867.40.'

There is a preliminary question which must be disposed of.

A special question was submitted to the jury, namely: 'What expense, if any, for the bulkhead, does the jury include in their verdict?' The record as to this is: 'The jury answers: $467 00/100.'

The plaintiff has contended that, since the only way in which the expense of the bulkhead could be included in the verdict was by deducting the expense of it from the sum otherwise due to the plaintiff, the answer to this question must be taken to mean that the jury did deduct $467 from the sum otherwise due the plaintiff. If the cost of the bulkhead was in fact deducted from the sum otherwise due the plaintiff, the defendant cannot now complain that the charge of the presiding judge on that point was incorrect. And the plaintiff has insisted upon that point.

While it is hard to give any other meaning (than that contended for by the plaintiff) to the question and answer if they are examined critically, yet the question was a somewhat blind one to a jury, and an examination of the matters in dispute in this case has convinced us that it ought not to be disposed of on that ground. The plaintiff's demand was for the contract price, $1,850, plus three extras, to wit: (1) Sand, amounting to $182.70 (under count 4); (2) back-filling behind the bulkhead, $76.63, and teams for hauling snow and ice (under count 6), amounting to $106.63; and (3) extra expense of hauling the earth excavated because he was not given the use of railroad tracks, $361.80, making a total of $2,501.13. He allowed the defendant (1) a payment of $710, and (2) for completing the work $446.25, a total of $1,156.25, making his net claim $1,344,88. The auditor (1) allowed the defendant $38.25 more for completing the work than the plaintiff gave him credit for; (2) charged the plaintiff with $223.06 for part of the expense of erecting a derrick of which the plaintiff by agreement was to have the use in part; and (3) disallowed the $361.80 claimed by the plaintiff. These three items amounted to $623.11; deducting that from $1,344.88 claimed by the plaintiff we have the amount allowed by the auditor, $721.77. These were the items in dispute. We have been unable to persuade ourselves that the jury in finding a verdict for $628.80 deducted from the sum otherwise due to the plaintiff $467 for the bulkhead.

If as matter of construction of the contract between the defendant and the owner of the land (which in terms is the measure of the plaintiff's obligation under his contract with the defendant) it was the duty of the defendant to hold up Lewis street and prevent 'cave-ins' as it then existed the defendant's exceptions must be sustained. We are of opinion that such was the defendant's duty as matter of construction of that contract.

The statement in the bill of exceptions is that the four structures mentioned above were in Lewis street 'at the date of the contract between the plaintiff and defendant.' But counsel in their arguments have assumed that they were there at the date of the contract between the defendant and the owner of the land, and we shall dispose of the case on that footing.

There are three clauses in the specifications in accordance with which the work was to be done which bear upon this question, namely: 'Each contractor...