Zimmerman v. Baur

• Decision Date: 19 December 1894
• Docket Number: 1,380
• Parties: ZIMMERMAN v. BAUR ET AL
• Court: Indiana Appellate Court

39 N.E. 299

11 Ind.App. 607

ZIMMERMAN v. BAUR ET AL

1,380

Court of Appeals of Indiana

December 19, 1894

From the Vigo Circuit Court.

Judgment affirmed.

P. M Foley, J. C. Foley and I. N. Pierce, for appellant.

T. W Harper, J. G. McNutt and C. McNutt, for appellees.

REINHARD J. GAVIN, J., was absent.

OPINION

REINHARD, J.

Zimmerman sued Jacob Baur, Charles Baur, Herman Moench, George Moench, Charles Moench, Bertha Moench, Lilly Moench and Andrew Farnham for damages for an injury to a team of horses sustained from the alleged negligence of said parties in connection with the construction of a sewer in the city of Terre Haute. The complaint is in three paragraphs. It appears from the averments in the first paragraph of the complaint, that Jacob and Charles Baur were the owners and managers of a stable for feeding and keeping horses on the south end of lot 54, in Rose's addition to the city of Terre Haute, and had contracted with Zimmerman to keep his buggy and "a match team of fine blooded horses, trained and noted for their gait and speed as trotters and travelers," each of which was of the value of $ 1,500, at said stable, and to feed the said horses therein, and allow him, at reasonable hours, to drive them into and out of said stable at the south door thereof, at the rate of $ 50 per month; that in order to go into and out of said stable to Seventh street, in said city, and westward of said stable, it was necessary for Zimmerman, the appellant, to pass in and out of the door on the south side of said stable to, over, and along an alley in said city running east and west and along the south side of said stable to Seventh street, said alley being a public alley of and in said city; that the appellees Moench were also the owners of a lot located seventy-five rods west of said stable, the south end of which fronts on said alley; that all of said parties (the defendants below), being desirous of letting and obtaining the building and construction of a sewer from the south end of the Moench lot eastward and through said alley to and in front of the said stable, did then and there dig said sewer to a depth of four feet and a width of two feet along the whole of said distance; that in the digging and constructing of said sewer, they negligently and carelessly dug and constructed the same in front of and near to the said stable, so that the same was left insecurely filled and packed, but apparently safe, secure and filled, as it appeared on the surface of the ground and earth. Then follow allegations that appellant drove his horses out of the stable and along the public alley, and that while so driving them, one of the horses stepped into the excavation so left insecurely filled and packed as aforesaid, whereby said horse was permanently injured, to the appellant's damage. It is also averred that the appellant was without fault.

The second paragraph is the same as the first, except that instead of charging the defendants with negligently digging the sewer so that it was left insecurely packed and filled, but apparently safe, it is charged "that in the digging, construction and making of said sewer the defendants, without the permission of the city of Terre Haute, wrongfully and unlawfully constructed and dug the same in and through said alley in front of and near to the said stable, so that the same was left insecurely filled and packed, but apparently safe and secure, as the same appeared on the surface of the ground and earth."

The third paragraph is the same as the first, except as to the charge of negligence, which is as follows:

"That on the 21st day of September, 1880, the common council of the city of Terre Haute passed and adopted an ordinance in relation to the public sewers of the said city; that said ordinance ever since has been and is now in full force and effect; that section four of said ordinance is in the words and figures as follows, to wit:

"'Right to drain. (Sec. 4.) Any person having the right to tap any public sewer, who shall, by means of pipes or other communication, drain the cellar or vaults situated upon the property adjacent to their own, shall, upon conviction thereof before the mayor, be fined in any sum not exceeding $ 100, and upon a second conviction for the same offense, shall be debarred from the further right to drain into said sewer.'

"That on the 17th day of August, 1889, the defendants, the said Baurs, having the right to tap a public sewer of said city, did so tap a public sewer of said city, and did connect therewith and drain and run therein a private sewer, of which the defendants, the Baurs, were the owners and controllers, and for the purpose of draining the cellar and vaults upon their property of their codefendants, the said Moenchs, said property being adjacent to the said property of said defendants Baurs, all of said defendants, without the permission of the city of Terre Haute, wrongfully and unlawfully, and for the wrongful and unlawful purpose of draining the cellar and vaults of the defendants Moench, as aforesaid, did, on the day of , 1889, construct and dig, and allowed, permitted, and advised the construction of a pipe sewer from the south end of said lot so owned by the defendants Moench, eastward and along said alley to and in front of said stable."

The action was subsequently dismissed as to Farnham. The other defendants answered in three paragraphs, the first of which was the general denial.

The second paragraph of the answer was by all the remaining defendants, and is as follows:

"Defendants, for further answer and cause of defense to each paragraph of plaintiff's complaint, say that the said defendants Moenchs contracted with one Andrew M. Farnham, a careful, experienced and competent builder of sewers, to dig the trench and build the said sewer, and to do all necessary work in tapping the sewer mentioned in the complaint, and to furnish all the necessary materials and labor in constructing said sewer for said Moenchs; that defendants Moenchs agreed to pay the defendant Farnham therefor the sum of sixty dollars; that the said Farnham did furnish the materials and labor for the construction of said sewer for said Moenchs, and personally superintended the building thereof; that neither of these defendants had any control of the building of said sewer, either in person or by agent, but that the said sewer so built by said Farnham was delivered to the said Moenchs completed for said sum of sixty dollars, and defendants say that the alleged injury to plaintiff's horse was caused by the negligence of the said Farnham or the men employed by him. Wherefore," etc.

The third paragraph is the separate answer of Jacob Baur and Charles Baur, and is as follows: "The defendants, Jacob and Charles Baur, for their third and separate answer herein to each paragraph of complaint, say that at the time alleged in the complaint the said Baurs, with several other persons, were the owners of a private sewer in the city of Terre Haute, which said private sewer ran through the alley in the rear of lot 54, in Rose's addition to the city of Terre Haute; that their co-defendants, Herman, George, Charles, Bertha and Lilly Moench, being desirous of building a private sewer for their own exclusive benefit, and being desirous of having a convenient outlet for said sewer, and being desirous of tapping the said sewer of the said Baurs and others, paid to the said owners of said sewer, including said defendants Baur, the sum of $ 35, in consideration of which the said Baurs and the other owners of said sewer orally granted to the said Moenchs the right and privilege of tapping said sewer at a point on said alley in the rear of said lot 54, and at a point on said lot so owned by said defendants Baur; that further than this the said defendants Baur had nothing whatever to do with the sewer built by the said Moenchs or with the tapping of said sewer owned by said Baurs and others, or with the alleged negligent conduct set forth in the complaint."

Then follow allegations substantially the same as those of the second paragraph of answer, that the Moenchs employed Farnham, who was an independent contractor, and had the sole supervision of the building of said sewer.

A several demurrer was filed to the second and third paragraphs of the answer, and overruled. The appellant having refused to plead further, judgment was rendered in favor of the appellees, and the only errors relied upon relate to the ruling of the court upon the demurrer to the answer.

It appears that each paragraph of the affirmative answers is addressed to each paragraph of the complaint. It is insisted by appellant's counsel that the third paragraph of the complaint is clearly bad, and hence that so far as the answers attempt to meet this paragraph they must be held sufficient under the rule that a bad paragraph of answer is good enough when addressed to a bad paragraph of a complaint. Ice v. Ball, 102 Ind. 42, 1 N.E. 66.

It is further insisted by appellant's counsel that the gist of the negligence charged in the third paragraph of the complaint is the construction of the sewer in violation of a city ordinance, and that the appellant has failed to show by this pleading that by such violation the appellees were guilty of a breach of duty which they owed to the appellant. Without deciding whether the violation of the city ordinance constitutes the gravamen of the charge of negligence contained in the third paragraph of complaint, or whether the pleading could be upheld upon the other averments of negligence therein charged, it is sufficient for our purpose to state that the entire complaint contains three specifications of negligence, viz.:

1. Negligently leaving the sewer excavation insecurely packed and...