Zilka v. Graham
| Citation | 26 Idaho 163,141 P. 639 |
| Parties | JOSEPH ZILKA, Respondent, v. TERESA M. GRAHAM, Appellant, and MAX ENGLAND, Respondent |
| Decision Date | 13 June 1914 |
| Court | Idaho Supreme Court |
JOINT TORT-FEASORS-INSTRUCTIONS-VERDICT-MOTION FOR JUDGMENT-EVIDENCE-SUFFICIENCY OF-TAXING COSTS.
1. Where two persons are sued as joint tort-feasors and the evidence clearly shows that only one of them is liable for the tort, judgment may be rendered against the one who is liable for the trespass.
2. Held, that the court did not err in overruling the demurrer to the amended complaint.
3. Held, that the court did not err in the admission of certain evidence.
4. Held, that the court did not err in giving a certain instruction to the jury.
5. A motion to set aside a verdict and judgment and for a judgment non obstante veredicto comes too late if made after judgment has been entered. Such motion must be made after the verdict and before the judgment is rendered.
6. Under the provisions of sec. 3092, Rev. Codes, it is made the duty of a coterminous owner of real estate to give previous reasonable notice to another coterminous owner of his intention to make excavations on his adjoining land.
7. Excavation by an owner on his own land, causing damage to a building on an adjoining owner's land, without the knowledge of, or previous notice to, such adjoining owner, is evidence of want of care in doing the work.
8. Held, that there is substantial evidence to sustain the verdict of the jury.
9. Held, that the court did not err in taxing the costs.
APPEAL from the District Court of the Eighth Judicial District, in and for the County of Kootenai. Hon. John M. Flynn, Judge.
Action to recover damages for alleged carelessness and negligent acts in the excavation of a certain lot adjoining the lot of plaintiff. Judgment for plaintiff. Affirmed.
Judgment affirmed, with costs of the main appeal awarded in favor of plaintiff Zilka, and the costs of the appeal from the order taxing costs in favor of defendant Graham.
McFarland & McFarland, for Appellant Graham.
The defendant was entitled to a charge to the jury that she was not liable if the damages were produced by the act of an independent contractor, or his servant. (Aston v Nolan, 63 Cal. 269; Sullivan v. Zeiner, 98 Cal 346, 33 P. 209, 20 L. R. A. 730; Ulrick v. Dakota Loan & Trust Co., 2 S.D. 285, 49 N.W. 1054; Hannicker v. Lepper, 20 S.D. 371, 129 Am. St. 938, 107 N.W. 202, 6 L. R. A., N. S., 243.)
One who has contracted with a competent and fit person exercising an independent employment to do a piece of work not in itself unlawful or attended with danger to others, according to the contractor's own methods, and without his being subject to control, except as to the results of his work, will not be answerable for the wrongs of such contractor, his subcontractors or servants, committed in the prosecution of such work. (2 Thompson on Negligence, p. 899, sec. 22; Crenshaw v. Ullman, 113 Mo. 633, 20 S.W. 1077; McGrath v. City of St. Louis, 215 Mo. 191, 114 S.W. 611; Harrison v. Kiser, 79 Ga. 588, 4 S.E. 320; Myer v. Hobbs, 57 Ala. 175, 29 Am. Rep. 719; Laycock v. Parker, 103 Wis. 161, 79 N.W. 327.)
Where the master and servant are sued jointly as in this case, the master is joined and held only under the doctrine of respondeat superior for the acts of the servant. A verdict acquitting the servant acquits also his respondent.
Elder & Elder and E. R. Whitla, for Respondent Zilka.
An application for a judgment notwithstanding verdict must be made at the time the verdict is received and before judgment is entered thereon.
A special order made after final judgment has been entered must be appealed from within the time provided by sec. 4807, Rev. Codes, as amended 1911 Sess. Laws, p. 367, and if such appeal is not taken within that time, this court obtains no jurisdiction to pass upon the question. (Oliver v. Kootenai County, 13 Idaho 281, 90 P. 107; Coey v. Cleghorn, 10 Idaho 162, 77 P. 331; Campbell v. First Nat. Bank of Rexburg, 13 Idaho 95, 88 P. 639; Balfour v. Eves, 4 Idaho 488, 42 P. 508; Marshalltown Stone Co. v. Des Moines Brick Mfg. Co. (Iowa), 101 N.W. 1124; Marshal v. Davis, 122 Ky. 413, 91 S.W. 714; 23 Cyc. 871.)
If, in excavating, a land owner failed to prosecute the work skilfully or without proper care to avoid injury to the structures on the adjoining land and damages are sustained by the adjoining land owner, the person making the excavation will be liable for all damages resulting from his wrongful or negligent conduct. (1 Cyc. 782; Gilmore v. Driscoll, 122 Mass. 199; 23 Am. Rep. 312; Gerst v. St. Louis, 185 Mo. 191, 105 Am. St. 580, 84 S.W. 34; 1 Thompson on Negligence, p. 1006, sec. 1115.)
A person employing a contractor to do an act, the doing of which casts upon him a duty, cannot, by delegating it to the contractor, escape from the responsibility attaching to him to see that duty performed. (Cabot v. Kingman, 166 Mass. 403, 44 N.E. 344, 33 L. R. A. 45; Bonaparte v. Wiseman, 89 Md. 12, 42 A. 918, 44 L. R. A. 482; Green v. Berge, 105 Cal. 52, 45 Am. St. 25, 38 P. 539; Barnes v. City of Waterbury, 82 Conn. 518, 74 A. 902; Samuel v. Novak, 99 Md. 558, 58 A. 19; Davis v. Summerfield, 133 N.C. 325, 45 S.E. 654, 63 L. R. A. 492.)
"The excavating by an owner on his own land adjoining another's building causing damage, without his knowledge or previous notice to him, is evidence of want of care in doing the work." (Schultz v. Byers, 53 N.J.L. 442, 26 Am. St. 435, 22 A. 514, 13 L. R. A. 569; Krish v. Ford, 19 Ky. Law Rep. 1167, 43 S.W. 237; Davis v. Summerfield, 133 N.C. 325, 45 S.E. 654, 63 L. R. A. 492; Gildersleeve v. Hammond, 109 Mich. 431, 67 N.W. 519, 33 L. R. A. 46.)
The adjacent owner of land has no right to deprive his neighbor of the natural support afforded by his soil; and his right, whatever that may be, to excavate must be exercised with due care and skill at his peril to prevent injury to his neighbor. (Ulrick v. Dakota Loan & Trust Co., 2 S.D. 285, 49 N.W. 1054; Hannicker v. Lepper, 20 S.D. 371, 129 Am. St. 938, 107 N.W. 202, 6 L. R. A., N. S., 243; City of Covington v. Geyler, 12 Ky. Law Rep. 466; Serio v. Murphy, 99 Md. 545, 105 Am. St. 316, 58 A. 435; Riley v. Continuous Rail Joint. Co., 110 A.D. 787, 97 N.Y.S. 283; Green v. Berge, 105 Cal. 52, 45 Am. St. 25, 38 P. 539.)
It is only where the servant's acts are the sole cause of action that the doctrine of respondeat superior applies, and it does not apply where any act or omission of the master enters into or contributes to the injury complained of. (Doremus v. Root, 23 Wash. 710, 63 P. 572, 54 L. R. A. 649.)
This question has often been passed upon on the question of a separable cause of action. (Southern Ry. Co. v. Edwards, 115 Ga. 1022, 42 S.E. 375; 26 Cyc. 1644.)
Where several defendants are joined in an action for tort, a verdict may be rendered against any number thereof, and the other acquitted. (Kinkler v. Junica, 84 Tex. 116, 19 S.W. 359.) The rule is also statutory in this state. (Rev. Codes, 4351, 4352; Bingham v. Lipman, 40 Ore. 363, 67 P. 98; Moore v. Fitchburg Railroad Corp., 4 Gray (Mass.), 465, 64 Am. Dec. 83; Gulf C. & S. F. Ry. Co. v. James, 73 Tex. 12, 15 Am. St. 743, 10 S.W. 744, Westerfield Gas & Milling Co. v. Abernathy, 8 Ind.App. 73, 35 N.E. 399; Groot v. Oregon Short Line Ry. Co., 34 Utah 152, 96 P. 1019; Muller v. Hale, 138 Cal. 163, 71 P. 81; 29 Cyc. 487.)
"The successful party should be allowed witness fees for attendance during the time the trial was delayed, and additional traveling expenses resulting from a continuance, when caused by the fault of his opponent." (11 Cyc. 119.)
The per diem of a witness who attends in obedience to a subpoena is properly computed according to the time during which he is in actual attendance, and not limited to the time when he is actually testifying, or to the days on which the trial actually takes place. (40 Cyc. 2184b; Hunter v. Russell, 59 F. 964; Farmer v. Stillwater Water Co., 86 Minn. 59, 90 N.W. 10.)
C. H. Potts, for Respondent Max England.
Where the servant does the work which he is employed to do, under the direction of the employer, or his agents, relying upon them as to the method in which such work should be done or performed, and performing such work without negligence on his part, he is not liable for injury sustained by a third person, caused by the manner in which such work was performed, unless he knew or had reason to believe that the manner in which he was performing such work was hazardous and liable to occasion injury. (Gustafson v. Chicago etc. R. R. Co., 128 F. 85-90.)
The respondent England could be held liable only for actual negligence in the performance of his work, while Mrs. Graham, as the owner of the property, would become liable to the plaintiff for her failure to perform the obligations imposed upon her by statute as the owner of the land.
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