Shapiro v. Vautier.

• Decision Date: 24 March 1944
• Docket Number: No. 169.,169.
• Citation: 36 A.2d 349
• Parties: SHAPIRO v. VAUTIER.
• Court: D.C. Court of Appeals

36 A.2d 349

SHAPIRO

v.VAUTIER.

No. 169.

Municipal Court of Appeals for the District of Columbia.

March 24, 1944.

Appeal from the Municipal Court for the District of Columbia, Civil Division.

Action by Ellen V. Vautier against Philip Shapiro for damages resulting from a claimed unlawful demolition of a chimney in a wall in plaintiff's apartment. Verdict and judgment for plaintiff, and defendant appeals.

Affirmed.

Raymond E. Gable, of Washington, D. C. (Needham C. Turnage, of Washington, D. C., on the brief), for appellant.

Thos. H. Patterson, of Washington, D. C. (Grover C. Kane, of Washington, D. C., on the brief), for appellee.

Before RICHARDSON, Chief Judge, and CAYTON and HOOD, Associate Judges.

CAYTON, Associate Judge.

Appellee was awarded a verdict for damages resulting from a claimed unlawful demolition of a chimney in a wall in her apartment. The verdict was rendered against appellant Shapiro as owner of the building, and one Christopher, the contractor on the job. Shapiro appeals.

The first principal question involves the sufficiency of the evidence to support the verdict. We recite only the evidence most germane here. Appellee had rented an apartment from appellant and had gone into possession; many months later, appellant leased the entire premises to one Pauline Vlahos; the lease contained the following provision:

‘The lessee shall have the right to make such alterations, structural improvements or changes to the demised premises as she deems necessary for the operation of her restaurant and on sale liquor business.'

Vlahos engaged the defendant Christopher to make certain structural changes, including the erection of a wall through the middle of the ground floor under appellee's apartment. In the performance of the work a chimney, which was part of a wall between appellee's bedroom and living room, was demolished leaving large openings in the ceiling as well as the floor of her apartment. This resulted in dirt, rain, and snow entering her apartment, causing some property damage and resulting also in illness on the part of appellee. The actual demolishing of the chimney was performed by a subcontractor. It was performed before the effective date named in the lease to Vlahos, when rent thereunder was to commence. Shapiro did not notify appellee of the lease to Vlahos and continued, as owner, to collect rent from appellee. There was evidence that Shapiro authorized Vlahos to have this particular work performed; that he continued to occupy part of the premises as a business establishment throughout the time of the construction work; that he was there every day during the progress of the work and knew the extensive nature thereof and that it involved tearing down the chimney. Appellee denied that she had at any time given permission for the work.

We agree with the trial judge that this showing, tested by familiar and oft repeated standards, made a clear case for submission to the jury. ¹ Accepting the evidence (as it must be accepted for present purposes) in a light most favorable to plaintiff, it indicated that appellant as owner of the premises had authorized extensive reconstruction of a wall in appellee's apartment, that as such owner he was fairly chargeable with knowledge that the work would result in an undermining of the wall, and that his conduct was ‘evidential of a command or approval of the trespass by the landlord, such as to render him liable * * * in an action by the tenant for the resulting damages.’ Weinman v. DePalma, 232 U.S. 571, 575, 34 S.Ct. 370, 371, 58 L.Ed. 733. For these reasons it would have been highly erroneous to have taken the case from the jury.

Appellant insists that he should be absolved of liability under the ‘independent contractor’ doctrine and cities Maher v. Harriman, 65 App.D.C. 52, 79 F.2d 408. We hold that neither the doctrine nor the citation are applicable here.

This work did not involve repairs in the ordinary sense. It involved extensive structural changes which in their very nature should have been expected seriously to interfere with appellee's use of her apartment. As the Supreme Court said in Weinman v. De Palma, supra:

‘Nor does the ‘independent contractor’ doctrine apply where the work that the contractor is to do of itself amounts to a nuisance or necessarily operates to injure or destroy the property of plaintiff.'

There is even stronger reason for holding this an exception to the ‘independent contractor’ doctrine. An owner who has given his lessee blanket authority for ‘such alterations, structural improvements or changes' as the lessee deems necessary, who is on the premises daily and knows what the work involves as it progresses, cannot escape liability by claiming that the work was done by someone else. For it was under his express and continuing authority that appellee's possession was invaded and her damage caused. This was is supported by a number of well-reasoned cases which we cite in the margin, ² and most of which were cited in the recent case of Bailey v. Zlotnick, 77 U.S.App.D.C. 84, 133 F.2d 35.

Another assignment of error concerns the action of the trial judge in causing or permitting the rial to continue on without a recess, past the dinner hour. Concerning that assignment of error we find the following in the record:

‘Some time after 6 o'clock the Court stated to counsel and to the members of the jury that he had learned that frequently members of the jury would prefer to sit on and complete a case the same day rather than come back another day, and the members of the jury were asked to state their preference as to going on with the case. Eleven members of the jury said that they would prefer to continue...