Western Real Estate Trustees v. Hughes

• Decision Date: 18 August 1909
• Docket Number: 2,814.
• Citation: 172 F. 206
• Parties: WESTERN REAL ESTATE TRUSTEES et al. v. HUGHES. [1]
• Court: U.S. Court of Appeals — Eighth Circuit

172 F. 206

WESTERN REAL ESTATE TRUSTEES et al. v. HUGHES. ^[1]

No. 2,814.

United States Court of Appeals, Eighth Circuit.

August 18, 1909

(Syllabus by the Court.)

In the federal courts, in actions grounded upon negligence, the plaintiff is entitled to rest upon the presumption that he was without fault or negligence until the contrary is in some way made to appear; and the burden of alleging and proving the contrary rests upon the defendant.

What is plainly implied in a pleading is as much a part of it as what is expressed.

Where a pleading contains an allegation which is not a nullity, but is subject to criticism as being indefinite and largely a conclusion of law, and the opposite party, without questioning its sufficiency in a timely way, takes issue thereon and proceeds to trial, the defect is waived.

A master is responsible for the tortious acts of his servants done in his business and within the scope of their employment, although he did not authorize or know of the particular act, or even if he disapproved or forbade it.

Servants do not depart from the scope of their employment merely because in executing the work assigned to them they exceed or violate their instructions in respect of its details or the manner of doing it.

While one whose property is endangered through the negligence of another is required to exercise reasonable care to avoid or lessen the threatened injury, the consequence which the law attaches to a negligent failure so to lessen the injury is not the loss of all right of recovery, but the elimination from the recovery of such damages as could have been avoided by the exercise of reasonable care.

William Baird (Edgar A. Baird and Claire J. Baird, on the brief), for plaintiffs in error.

Irving F. Baxter (Richard S. Hall and John F. Stout, on the brief) for defendant in error.

Before SANBORN and VAN DEVANTER, Circuit Judges.

VAN DEVANTER, Circuit Judge.

This case arose out of the falling of a party wall in Omaha whereby the buildings of which it was a part were carried down and much damage was done to the stock of groceries and store fixtures of the plaintiff below, who was occupying one of the buildings under a lease from Andrew J. Hanscom, its owner. The other building was owned by the defendants below. The party wall consisted of a stone foundation, or cellar wall, seven feet high and a brick superstructure extending upward four stories. The plaintiff sought to recover from the defendants the amount of his loss, and in his petition alleged that 'the defendants, through their agents and employes, were engaged in making certain extensive alterations in their said building, among other things in particular, in lowering the main floor; * * * that * * * the work of making said alterations * * * was being done * * * in a grossly negligent and careless manner, in that the defendants, by their agents and servants, did cut away and remove large portions of the stone foundation * * * without properly and adequately supporting the superstructure, * * * and did thereby so weaken said stone foundation and undermine and weaken the said brick superstructure as to cause the collapse of' the latter; that 'said alterations and everything done in connection therewith were made and was done in a negligent manner,' and that 'the collapse of the said party wall, so as aforesaid caused and brought about by and through the negligence of the defendants and of their agents and employes, caused the collapse and fall of the * * * building * * * occupied by plaintiff. ' In their answer the defendants denied the negligence so charged against them, and alleged that the plaintiff negligently had contributed to the falling of the party wall (a) by permitting waste water from a large refrigerator in the building occupied by him to overflow against and into the party wall, whereby its stone foundation was weakened; (b) by storing in such building, near the party wall and above the part of the foundation which was so weakened, a large amount of merchandise, the weight of which was excessive considering the condition of the foundation; and (c) by failing to remove such merchandise or any part thereof on the evening preceding the falling of the party wall, after discovering the weakened condition of the foundation. In his reply the plaintiff denied the negligence so charged against him, and a trial of the issues resulted in a verdict and judgment in his favor which the defendants now seek to avoid. A prior trial had resulted in a like verdict and judgment; but the judgment was reversed (82 C.C.A. 514, 153 F. 560) because of an erroneous ruling on a question which was resolved favorably to the defendants at the second trial.

To a proper appreciation of the questions now presented for decision, it is necessary that the case made by the evidence be stated briefly. In the construction of the party wall the sides of its stone foundation were carried up separately, the center was filled in with small stone and mortar, and the whole was bonded at the top by wider stone. The upper or brick portion was narrower than the foundation, leaving a wide shoulder on the defendants' side and a lesser shoulder on the other. Originally the joists of the main floor in the defendants' building were rested at one end upon the wide shoulder; but later the floor was raised and the shoulder was carried up correspondingly, so that the joists still could be rested thereon. On the occasion in question the defendants, through servants employed for the purpose, were engaged in lowering the floor, and at some time in the course of the work a part of the foundation of the party wall split or separated in the direction of its length, the defendants' side bulged out perceptibly, and bricks in considerable numbers fell from the base of the upper wall. Thereupon those to whom the work of lowering the floor had been committed removed a part of the defendants' side of the foundation, and placed a jack screw and header under that part of the upper wall from which the bricks had fallen, and also placed a like support under the main floor on the plaintiff's side; their immediate purpose being to prevent more bricks from falling and to take some of the weight off the foundation. Things were left in that condition overnight, and the next morning, after the defendants' servants resumed work, the party wall fell and carried down the two buildings.

At what time the foundation began to split and to bulge, what caused it to do so, and whether reasonably appropriate and adequate precautions were taken to support the upper wall, are matters in respect of which the evidence was conflicting. That for the plaintiff tended substantially to show that when the floor was lowered, so that the joists touched the original shoulder, the defendants' servants declared that the floor would have to come down about four inches more, and proceeded to, and did, pry off a substantial part of the shoulder, including several of the bond stones, which extended well under the upper wall; that this materially weakened the foundation, and undermined and weakened the upper wall, and shortly thereafter the foundation began to split and to bulge at that place, and bricks in considerable numbers began to fall from the upper wall; that the precautions then taken to support the wall were not reasonably appropriate or adequate; that other designated precautions usually were taken in like circumstances, and should have been taken in this instance; and that the overflow of waste water from the plaintiff's refrigerator had not been such as to weaken the foundation. But the defendants' evidence was otherwise, and tended especially to show that there was no intention or attempt to lower the floor beyond its original position; that the splitting and bulging of the foundation and the falling of the bricks occurred while the floor was being lowered so that the joists would rest upon the original shoulder; that no part of the foundation was pried out or removed...