Samuel v. Novak

• Decision Date: 08 June 1904
• Citation: 58 A. 19,99 Md. 558
• Parties: SAMUEL et al. v. NOVAK et al.
• Court: Maryland Court of Appeals

58 A. 19

99 Md. 558

SAMUEL et al. v. NOVAK et al.

Court of Appeals of Maryland

June 8, 1904

Appeal from Baltimore City

Action by Rebecca Samuel and others against Frank Novak and others. From a judgment for defendants, plaintiffs appeal. Reversed.

Argued before McSHERRY, C.J., and FOWLER, BRISCOE, BOYD, PAGE, and SCHMUCKER, JJ.

Myer Rosenbush, for appellants.

Gans & Haman and John M. Requardt, for appellees.

PAGE J.

This is an action of tort, brought by the appellants against the appellees to recover damages for injuries to the appellants' house, occasioned by the alleged carelessness of the appellees. It is alleged in the declaration that the appellees, while engaged in removing a building adjacent to the property of the appellants, "willfully, carelessly and in an unskillful and unworkmanlike manner negligently and wrongfully tore down and removed a building adjacent to the property of the said plaintiffs, and then and there excavated and went below the foundation walls of the plaintiffs' property, without notice to said plaintiffs, and that by reason thereof the property of the plaintiffs was structurally weakened, and said property collapsed and fell in," etc. The defendants pleaded the general issue, and the judgment being for them, the plaintiffs appealed.

The proof shows that on Friday, the 16th of May, 1902, the appellants were notified by Mrs. Schlutter, the owner of the property about to be improved, that they "could not go ahead with their work without underpinning her property." At that time the Schlutter building was entirely down, and an excavation or ditch had been dug for the walls of the new structure along and below the foundations of the walls of the appellants' house. Mrs Samuel on the same day entered into an agreement with the defendant Novak, in which the latter agreed for a consideration of $50 to do the work of underpinning the walls of the appellants' house, and to proceed with the work on the Monday following. Novak, however, did not begin this work until the following Tuesday. At the time this agreement was made the walls of the Schlutter building were entirely down and there were no props, braces, or other precautions to protect the wall on the adjoining property, except "a narrow board extending midway across the Schlutter lot." There was evidence offered tending to show that it was a custom among builders, while tearing down a building "similar to this," to protect the wall on the adjoining property by the use of props and braces; and the fall of the appellants' wall was caused by the excavation upon the appellees' lot.

The court granted two prayers, both offered by the defendants. The appellants asked no instructions. One of the granted prayers of the appellees instructed the jury that "by the theory of the plaintiffs' case--that is (as we construe the phrase), if they found that the injury to the appellants' property was occasioned by the failure of Novak to properly perform a contract entered into between the plaintiffs and Novak for the protection of their property"--their verdict must be for Novak. The hypothesis upon which this instruction is based requires that the jury shall find, as the condition of Novak's right of recovery, that the injury was caused by his failure to perform his contract to underpin the plaintiffs' wall. If this were found to be the cause of the injury, and not the negligence of the defendants in making the excavation, then it seems to be clear that the only cause of action the plaintiffs would have would be against Novak for a breach of the contract in not properly performing the work of the underpinning, and not for negligently making the excavation. Upon the hypothesis of this prayer no recovery could be had against Novak except upon an action ex contractu for a breach of his contract. "It is impossible," said...