Shafer v. Wilson

• Decision Date: 07 March 1876
• Citation: 44 Md. 268
• Parties: JACOB C. SHAFER v. WILLIAM P. WILSON.
• Court: Maryland Court of Appeals

44 Md. 268

JACOB C. SHAFER v. WILLIAM P. WILSON.

Court of Appeals of Maryland

March 7, 1876

APPEAL from the Baltimore City Court.

This action was instituted in the Court below by the appellee, to recover damages for the breaking up of his business, by the acts of the appellant. The plaintiff was the lessee for a short term of years of a house and lot in the City of Baltimore, where he was conducting a restaurant and public bar, (known as the "Lexington Street Green House,") at the time of the acts complained of. The defendant was the owner of the adjoining premises and made certain improvements and excavations thereon, which it was claimed were done in a negligent and unskilful manner, causing injuries to the plaintiff's premises which resulted in the breaking up of his business.

First Exception.--Not passed on by the Court.

Second Exception.--After the testimony in the first bill of exceptions, the plaintiff further offered in evidence by himself, that he kept a restaurant at No. 211 Lexington Street, commenced on the 25th March, 1871, and closed about the 8th of January, 1875; witness was then asked the following question: "What were about the usual profits of your business prior to the commencement of digging by Shafer?" To this question the defendant objected, but the Court, (BROWN, J.,) overruled the objection and permitted the question to be asked. The defendant excepted.

Third Exception.--After the evidence in the second bill of exceptions, the witness then answered the question and said, that his usual profits were from $15 to $20 per day; to this answer the defendant objected, but the Court overruled the objection, and permitted the said answer to go the jury as evidence. The defendant excepted.

Fourth Exception.--Not passed on by the Court.

Fifth Exception.--After the testimony was closed the plaintiff offered the two following prayers:

1. If the jury shall find from the evidence that the defendant undertook to excavate and dig down below the foundation of the house erected on the lot occupied by the plaintiff, and in so doing, performed such excavation in a negligent and unskilful manner, whereby the building so occupied by the plaintiff, was so damaged and injured as to render the same untenantable and unfit for occupation, and for the purpose of the business of the plaintiff, in which he was engaged, and to compel the plaintiff to vacate said premises, and to remove therefrom his stock in trade, and if they find that the business of the plaintiff was broken up thereby, then the plaintiff is entitled to recover such damages, if any, as they shall find were sustained by the plaintiff by reason of the breaking up of his business, and the loss of the profits thereof during the residue of his term.

2. If the jury shall believe from the evidence in this cause that the defendant undertook to deepen the cellar of his premises, and to underpin the west wall of the house occupied by the defendant, without giving the plaintiff notice of his intention to do so, and shall further find that in consequence of such digging and underpinning, the house occupied by the plaintiff became untenantable, and unfit for occupation, and for the purpose of the business of the plaintiff in which he was engaged, and that the plaintiff was thereby compelled to vacate said premises, and to remove therefrom his stock in trade, and that the business of the plaintiff was broken up thereby, then the plaintiff is entitled to recover the damages, if any, which they may find the plaintiff sustained by reason of the breaking up of his business, and the loss of the profits thereof, during the residue of his term.

The defendant objected to the first prayer of the plaintiff:

1st. Because there was no evidence that the defendant performed the excavation in his cellar in a negligent and unskilful manner.

2nd. Because there was no evidence that the building occupied by the plaintiff was damaged and injured, so as to render the same untenantable and unfit for occupation.

3rd. Because there was no evidence of the value of the term under the lease offered in evidence.

4th. Because there was no proof of the loss by the plaintiff of any gain or profits in his business, by reason of the digging by the defendant.

The defendant objected to the second prayer of the plaintiff upon the following grounds:

1st. Because it required the jury to find that no notice was given to the plaintiff by the defendant of his intention to deepen his cellar, and to dig under his foundation wall.

2nd. Because it assumed that the business of the plaintiff was broken up by the act of the defendant.

3rd. Because it required the jury to find for the plaintiff, without requiring them to find that the defendant, in digging under his own foundation wall, did the work in a careless, negligent or unskilful manner, and did not use reasonable care in doing such work.

And the defendant offered the seven following prayers:

1. That if the jury find from the evidence that before the defendant, commenced to dig under the foundation wall of his house, adjoining to the house of the plaintiff, he verbally notified the plaintiff of his intention so to do, and shall further find, that afterwards the defendant did dig under his foundation wall, upon his own land, and underpinned the same, and in so doing, exercised reasonable care to prevent injury to the plaintiff, then the plaintiff is not entitled to recover, although the jury shall believe that the east wall of the plaintiff's house settled and cracked by reason of the excavation made by the defendant, and although they may believe that he left the house on that account.

2. That if the jury believe from the evidence, that the foundation wall of the house occupied by the plaintiff, was in a bad condition before the commencement of the digging under his, the defendant's wall, by the defendant, then the plaintiff is not entitled to recover any damage for the falling down of his foundation wall, nor any damages for the settling of the house of the plaintiff, or to his business caused by such settling, if the jury so find.

3. That if the jury shall believe from the evidence, that the wall of the house of the plaintiff was in a bad condition before the commencement of the digging by the defendant, under his own foundation wall, and that the settling and cracking thereof, were caused by its own inherent defects, and not by the digging by the defendant of his cellar in the year 1874, then the plaintiff is not entitled to recover for any injury to the possession of his property or his business, caused by such settling and cracking.

4. That no notice of his intention to dig under his own foundation wall, either in writing or otherwise, was required by law to be given to the plaintiff by the defendant, before the commencement by the defendant to dig under and underpin his said wall, and the want of such notice, if the jury find that none was given, does not entitle the plaintiff to recover in this case.

5. That there is no proof in this case that the loss of the profits of the business carried on by the plaintiff, in the house mentioned in the declaration filed in the case, was caused by the digging by the defendant upon his own ground, and is therefore too remote, and if the jury find for the plaintiff, they shall not consider the evidence in relation thereto as an element of damages in this case.

6. That there is no proof in this case that the defendant did the work of excavating and underpinning the foundation wall of his house, adjoining the east wall of the house occupied by the plaintiff, in a careless, negligent or unskilful manner, and the plaintiff is not therefore entitled to recover anything for any injury to the house upon his land, even though the jury shall believe that his house settled and cracked by reason of the excavation done by the defendant.

7. That if the jury shall believe from the evidence in this cause, that the plaintiff is the tenant of the house known as No. 211 Lexington Street, and not the owner of the said property, then he is not entitled to recover any damages for injury to the said house or ground.

The Court granted the two prayers submitted by the plaintiff, and granted the first, third and seventh prayers of the defendant by consent, but refused his second, fourth, fifth and sixth prayers.

The defendant excepted. The jury rendered a verdict for the plaintiff, and judgment was entered accordingly. The defendant appealed.

The cause was argued before BARTOL, C.J., STEWART, MILLER, ALVEY and ROBINSON, J.

Samuel Snowden, for the appellant.

The question asked the witness, as stated in the second bill of exceptions, and the answer thereto in the third bill of exceptions, were both improper, and should not have been admitted. The plaintiff might have made that profit for a short period of time, but it does not follow that he would have continued so to do--as an element of damage, such profits were merely speculative, depending on uncertain future contingencies, and therefore offering no ground for damages. Cooke vs. England, 27 Md., 14; Griffin vs. Colver, 16 N. Y., 489; Sedgwick on Mea. of Dam., t. p. 72.

The cellar of the defendant's house, when he began to dig, was eight to twelve feet below the bottom of the cellar of the house occupied by the appellee, with a stone wall three feet thick between his cellar and the wall of the cellar of the appellee; and it is not possible that the appellant, when he commenced to dig, would have contemplated any injury to the business of the plaintiff, as the probable result of the work he was about to do, which is the rule applied to actions of tort as well as contract. Abbott vs. Gatch, 13 Md., 315, 333.

The profits of the business were too...