Tillson v. Consumers' Power Co.

• Decision Date: 23 October 1934
• Docket Number: No. 23.,23.
• Parties: TILLSON v. CONSUMERS' POWER CO. et al.
• Court: Michigan Supreme Court

269 Mich. 53

256 N.W. 801

TILLSON

v.CONSUMERS' POWER CO. et al.

No. 23.

Supreme Court of Michigan.

Oct. 23, 1934.

Appeal from Circuit Court, Oakland County; William B. Brown, Judge.

Action by John Arthur Tillson against the Consumers' Power Company and others. From a judgment for plaintiff, the defendants appeal, and plaintiff cross-appeals.

Judgment in accordance with opinion.

Argued before the Entire Bench.John Arthur Tillson and Goodloe H. Rogers, both of Pontiac, for appellant.

Pelton & McGee, of Pontiac, for appellant Pryale Const. Co.

W. D. Kline and N. B. Kelly, both of Jackson, for appellant Consumers' Power Co.

NORTH, Justice.

Plaintiff owns lots 114 and 115 of the original plat of the city of Pontiac. There was located on these lots a three-story building constructed of bricks and cement blocks. The property fronted to the west on Wayne street and extended back to an alley on the easterly side. The adjacent property on the southerly side was owned by the Consumers' Power Company. The line between these two properties was 4 to 6 inches south of the south wall of plaintiff's building. In May, 1930, the Consumers' Power Company entered into a contract with defendant Pryale Construction Company for the erection of an office and mercantile building on the power company's site according to prepared plans and specifications. These plans specified an excavation to a depth of 14 feet below the established grade; and the excavation covered the front or westerly 100 feet of the power company's lot and extended south from plaintiff's building 60 feet or thereabouts. Plaintiff alleged that in this excavating, which was done under a subcontract by defendant Bartling & Dull Company, the southerly wall of his building was undermined, that in consequence thereof the wall collapsed, and his land and building were thereby greatly damaged. In this tort action plaintiff seeks to recover from defendants the damage he has sustained. He asserts a right of recovery both by reason of defendants' common-law liability arising from alleged negligence and under the statutory liability imposed by Act No. 314, Pub. Acts 1921, being 3 Comp. Laws 1929, § 13500 et seq. In substance plaintiff alleges a duty on the part of defendant to use reasonable precaution (1) to prevent the soil from plaintiff's said lot 114 from falling into said excavation; (2) to prevent injury and damage to plaintiff's said land and building thereon; (3) to protect the soil on plaintiff's said lot 114 and to preserve it in its natural state; and (4) under Act No. 314, Pub. Acts 1921, to furnish sufficient lateral and subjacent support to plaintiff's building, to protect the land and all structures thereon from injury due to or incident to excavating or to the disturbance of other existing conditions caused by such excavation. Plaintiff claims that defendants' failure to discharge the duties above enumerated caused the damage to his property for which he seeks recovery.

In their defense, defendants assert unconstitutionality of the statute above cited and deny its application to the facts in this case; they deny that any of defendants were guilty of negligence which was the proximate cause of plaintiff's damage; they assert that an incorrect rule of damage was applied and that the damages awarded were excessive. And further defendant Consumers' Power Company denies liability on the ground that the excavation was done through an independent contractor and that this contractor or his subcontractor went outside the scope of the contract in trespassing upon plaintiff's lot while erecting underpinning beneath plaintiff's wall. In the circuit court the case was tried without a jury. Plaintiff had judgment for $22,800. Defendants' appeal presents the questions above noted. Plaintiff in a cross-appeal asserts that the judgment for damages is inadequate.

It is of first importance to determine whether the statute applies to the facts presented in this case and, if so, whether the law is constitutional. At common law one engaged in excavating was only required to preserve lateral support for the adjacent land in its natural condition, unburdened with buildings which increase the hazard. Gildersleeve v. Hammond, 109 Mich. 431, 67 N. W. 519,33 L. R. A. 46. The statute imposes duties unknown to the common law. We quote the material portions of Act No. 314, Pub. Acts 1921 (3 Comp. Laws 1929, § 13500 et seq.):

‘Owner or occupant of excavated land, duty to support adjacent land and structures. Section 1. It shall be the duty of every person, partnership or corporation who excavate upon land owned or occupied by them to a depth exceeding twelve (12) feet below the established grade of a street or highway upon which such land abuts or, if there be no such established grade, below the surface of the adjoining land, to furnish sufficient lateral and subjacent support of the adjoining land to protect said land and all structures thereon from injury due to the removed material in its natural state, or due to the disturbance of other existing conditions caused by such excavation.

‘Same; failure, liability for damage to property or business. Sec. 2. Such owner or occupant shall be liable to the proper person entitled to sue therefor, for the actual damage to land and structures and any other resulting damages, arising from failure to fulfill the duty created by this act. * * *

‘Common law duties and remedies. Sec. 4. The remedies herein provided and the duty herein created are in addition to the duty and remedies existing at common law.’

Defendants' contention that the statute is not here applicable involves the following facts: The actual excavating (with the exception of elevator pits) and such underpinning as had been thought sufficient were completed July 16, possibly as early as July 12. Plaintiff's wall did not fall until July 31. While excavating for the underpinning, water was struck in a strata of gravel. It flowed or seeped from plaintiff's land onto the Consumers' Power Company's property to such an extent as to prevent or seriously interfere with construction operations. It was necessary to check this flow or seepage of water. This seems to have presented a serious and rather difficult problem, and necessitated pumping the water from the excavation. The subcontractor, incident to an attempt to check the water, resorted to driving steel piles. This sheet piling was ordered by engineers who represented the Consumers' Power Company. The piles were driven through the strata of gravel down to the clay, a depth of 16 or 18 feet. About 25 feet of the piling parallel to and adjacent to plaintiff's wall had been driven when the wall fell. While driving these piles at a point towards the easterly end of the wall, sand or soil began to run out from under plaintiff's building. In an effort to stop this, the workmen used canvas or tarpaulin in connection with planking. This point was somewhat distant from where the collapse of the wall occurred, but it revealed the unstable character of the soil. All parties concerned had full knowledge that the foundation under the east 80 feet of plaintiff's wall was of cobblestone and did not extend to a great depth below the surface of the soil. There is conflict of testimony as to the amount of jar or vibration that resulted from the pile driving; but the collapse of plaintiff's wall followed the third day after the pile driving began. The central portion, something like 50 feet in length, of plaintiff's south wall fell, letting floors down, injuring plumbing and electric wiring, and causing a settling and cracking of the southerly portion of the front wall of plaintiff's building; and other damage to the building which need not be here detailed. As stated in the Consumers' Power Company brief, the claim that the statute does not apply in this case is as follows: ‘Under this testimony it cannot be said that the injury was due to the excavation or to any disturbance of conditions caused by the excavation. The excavation was at most a condition, not a cause. The water was below the excavation and came out in digging under Tillson's wall, not in digging this excavation on the property of Consumers' Power Company. Any injury due to pumping the water was not due to excavation, or at least the excavation on defendant's property. We suppose it was pumped so the contractor could work under plaintiff's wall. The pile driving mentioned was no part of the excavation. The piles were driven in order to keep out the water discovered under plaintiff's wall. If the collapse was due to lack of foundation (under plaintiff's wall) for an underpinning wall, the collapse cannot be said to be due to the excavation.’

Notwithstanding the statute is in derogation of the common law and should receive a strict construction (Aristos v. Detroit & Canada Tunnel Co., 258 Mich. 579, 242 N. W. 757), defendants' contention cannot be sustained. Everything done by the subcontractor was germane to, and necessitated by, the excavation for the Consumers' Power Company's building. Whether the collapse of plaintiff's wall, in the words of the statute, ‘was due to the removed material in its natural state, or due to the disturbance of other existing conditions caused by such excavation,’ the statutory liability resulted. The testimony disclosing that work incident to this excavation deprived plaintiff's property of its lateral support is ample. There is no dispute that water, sand, and other soil came out from under plaintiff's wall and upon the land of the Consumers' Power Company while its work incident to excavating was going on. That this change of the natural state of the subjacent and lateral support of plaintiff's building was serious and produced precarious conditions is quite conclusively evidenced by the efforts made by the subcontractor to check and prevent its continuance. Driving of the steel piles was part of this operation, and there is testimony...