Huber v. H. R. Douglas, Inc. , 94 Conn. 167 ( 1919 )

There are inconsistencies in the answers which the jury returned to the interrogatories submitted to them, but they are not serious enough to vitally affect the verdict. Under our practice it has long been the rule that a general verdict rendered upon several counts will stand if any one of them justifies it. Hoag v. Hatch, 23 Conn. 585, 589. The jury perhaps overemphasized the Douglas Company's liability, in spreading it over all three counts and at the same time removing two of these from consideration by finding, in substance, that the plaintiffs had not established their essential allegations; but there is nothing in this which weakens the effect of their conclusion as applied to the first count. That still answers the test, and fully justifies the court in rendering judgment for the plaintiffs upon the verdict.

We are also satisfied that the jury's answer to one of the so-called "additional interrogatories," to the effect that the plaintiffs had failed to prove that the removal of the Marsh wall caused the collapse of the Cady building, was plainly limited to the second and third counts of the complaint, and that it in no sense removed from consideration any of the stated grounds of negligence on which the first count rests. The context permits no other construction.

We find no error in the rulings of the court upon the admission of testimony. The answer of the witness Chittenden to the exclamation of Douglas, was properly admitted, with the qualification suggested by the court's comment. While the witness' statement was not directly evidential of its truth, it was proper for the jury to consider for determining what, if any, significance attached to the manner in which Douglas received it, and how far, if at all, his silence should be construed as acquiescence in what amounted to a direct charge of personal responsibility for the disaster. The ruling is clearly justified as one dealing with a claimed admission by conduct or silence.

The answer of the same witness on his redirect examination was admissible as giving his own reason for a course of conduct which, unexplained, might have invited adverse criticism of his attitude as a plaintiff. The parties have assumed that this ruling is before us for review, although no exception seems to have been taken by the defendants in the trial court.

The finding does not so inform us, but in the defendants' silence we may fairly assume that the witnesses Sweeney and Williams testified as properly qualified experts. The question asked of Sweeney was admissible. The specific allegations of negligence as made in the first count of the complaint were broad enough to permit the plaintiffs to show how the wall was removed, what method was adopted in its removal, and what might have been expected to result from putting that method into practice. The question in no way violated the familiar rule that only negligence of the specific kind alleged is open to proof.

The court's admission of the question asked of Williams was also correct. It neither called for a statement by the witness of the legal rights of the parties, as the defendants objected, nor is it open to the rather fine-spun criticism advanced on the brief of calling for on opinion based upon a standard of care sufficient to assure the Cady building immunity from any harm whatever under any and all conditions. The witness was properly asked, as one presumably qualified by his occupation to answer, whether the method claimed to have been adopted in this case was a safe and proper one. This was of pertinent bearing upon the claim of negligence, and the answer of the witness indicates that he fully understood the question and its reasonable limitations.

The defendant complains that no adequate definition of the term "contributory negligence" was given to the jury for their guidance. This criticism is directed to a single portion of the charge where the term was used by the court with no accompanying explanation of its meaning. It ignores the context, and the constantly recurring and interwoven references to that and kindred topics throughout the charge. The court correctly defined both negligence and proximate cause, and after telling the jury that "to recover, the plaintiffs must prove by a fair preponderance of the evidence that the negligence of the defendants was the proximate cause of the plaintiffs' injuries, and that no negligence of the plaintiffs was a proximate cause thereof," told them, in substance, that it was quite possible in a given case to trace the proximate cause or causes to concurrent conduct of both the plaintiff and the defendant. They were warned again later in the charge that even if the defendants' negligence should be found a proximate cause of the collapse of the building, "the plaintiffs must still prove that no negligence of their own was a proximate cause thereof." These references, read in connection with the court's repeated and correct statements of the standard and degree of care which the plaintiffs must establish of their own conduct to relieve them of such negligence as would prevent a recovery, fully served the purpose of an explicit definition of contributory negligence, and a caution to the jury as to the effect of its presence upon the plaintiffs' case.Conway v. Waterbury, 84 Conn. 345, 80 A. 83.

It is made a ground of appeal that the court by its instructions to the jury permitted them to consider and give controlling importance to claimed acts of negligence of a character not specifically relied upon in the complaint. This is more precisely aimed at the court's instructions upon three definite elements which figured in the evidence: (1) the chipping and hammering of the Cady wall so as to loosen the brick and mortar; (2) the splitting of the wall as the Marsh building was taken down; (3) the failure of the defendant to seasonably notify the plaintiffs in advance that it was about to take down the building.

In dealing with the testimony of the witness Sweeney, we have already sustained the trial court's ruling which held the second of these elements to be within the purview of the complaint. That conclusion is equally applicable to the remaining elements. The negligence charged in the complaint is not alone that of leaving the wall of the Cady building weakened and unsupported, but is specifically directed to the way the removal of the Marsh wall was accomplished. It is charged not only that this work was "negligently and carelessly" done, but that the "manner" of the wall's removal and the "method" pursued by the defendant were improper, and largely because this method wholly lacked the taking of "reasonable precautions" by the defendant to safeguard the Cady property. These assignments of negligence left open for the plaintiffs a wide range of evidential detail to establish their truth. It is neither practicable, nor the purpose of any rule of procedure, to compel the inclusion of all such matters in the complaint as a part of its necessary allegations. All that is insisted on is that the plaintiff shall be restricted in his offer of proof to evidential facts within the range of the case which his complaint fairly discloses, and that the complaint shall be definite enough to mark out these limitations with reasonable certainty. While "it is true that the line of separation between that which is merely unnecessary description and that which is essential in pleading, often becomes almost a lost boundary" (Shepard v. New Haven N. Co., 45 Conn. 54, 57), parties have the means of ample protection against surprise resulting therefrom in the motion for a more specific statement.

The authorities cited by the defendant to sustain its contention on this branch of the case are not in point. They rest, without exception, upon a distinct departure from the case laid out in the complaint, by an attempt to import into it as a controlling factor some new or additional ground of negligence clearly outside of any specification of the complaint. That is not true of the situation presented here, and we think the trial court properly recognized all these elements as fairly in the case.

The court committed no error in its several references to the interview claimed to have taken place between the plaintiff Huber and Douglas, and its instructions as to the limited effect to be given the statements of the latter in the event of their being found proven, were manifestly correct. No serious question seems to have been made upon the trial as to the actual responsible relation of Douglas either to the work or to the defendant company, although the court carefully left both matters for the jury's determination. After fully stating the bearing upon the case of the claimed promise, if made, the court cautioned the jury that at the most it could only be "relevant on the question whether the plaintiffs have proved themselves free from contributory negligence." While this restriction was obviously right, it gave the plaintiffs no more favorable consideration than they were entitled to. If upon their own appeal to the man who was to all appearances both the responsible and active head of the entire work, they were assured by him that their building would be adequately protected without further action on their part, they were of course entitled to show this when an attitude inspired by his assurance was charged against them as conclusive evidence of their own negligence. Nor is there force in the defendant's claim that upon the plaintiffs' own showing they were negligent in their inactivity prior to June 14th — the conceded date of the Huber-Douglas interview. After-events show that there was ample time and opportunity following that interview to take effective measures for the building's security. If, as the plaintiffs urged, they refrained from themselves then taking such measures because of a definite and positive promise that the defendant would assume that responsibility, the situation before that date, so far as having any claimed significance adverse to the plaintiffs, ceases to be material. In that event, the controlling test of conduct is limited in its application to the period between the time of the promise and that of the Cady building's collapse. The charge of the court upon this branch of the case was adequate, and sufficiently covered such points embraced in the defendant's requests as were proper to go to the jury.

Several reasons of appeal, and the stronger part of the defendant's case, rest upon the complaint that the court in its charge imposed too great a burden upon the defendant in the degree of care demanded of its treatment of the Cady building. The criticism which necessarily underlies this branch of the case involves numerous detached portions of the charge, and as not infrequently happens, these gain nothing in intelligent and cohesive statement by the loss of an enlightening context. The essence of the defendant's complaint seems to be, (1) that the court by an unqualified use of the word "protection" in certain detached references to the measure of the defendant's duty to the Cady property, not only relieved the plaintiffs from all responsibility for its care and safety during the entire progress of the work, but centered all responsibility in the matter for that whole period upon the defendant; and (2) that the court failed to sufficiently inform the jury what conduct was fairly demanded of the plaintiffs and the defendant to satisfy the requirements of the rule as to reasonable care in its application to either.

The charge reasonably read in its entirety refutes both claims. It fairly summarizes the pleadings, defines the specific grounds of negligence which the first count discloses, and proceeds to an obviously correct instruction upon the law of lateral support, and a clear caution as to the limits of its relation to the case on trial. "``The owner of land,'" says the court in quoting fromCeffarelli v. Landino, 82 Conn. 126, 129, 72 A. 564, "``is entitled to have his soil in its natural condition supported by the adjoining land, but this right to lateral support does not extend to buildings or other superstructures placed upon the land. . . . The adjoining owner, . . . if he excavates so near the line that his neighbor's soil, by reason of its own weight or the action of the elements, is liable to give way, must support it by artificial means, or answer in damages if it falls into the excavation. But if there are buildings upon the neighbor's land, these increase the lateral pressure, and if the giving way is due to this added burden, the person excavating is not liable, in the absence of negligence in conducting the work, for the damage so resulting to the owner.' In this case, the natural right of support existed in respect of the Cady land only, and not of the Cady building." This in itself sufficiently disposes of any claim that the court erred in its instructions upon the basic law of the situation, and this compact and correct statement of the law became the central and controlling note of the court's whole treatment of the subject. It brings into clear relief the essential bearing of negligence, and the fact that this negligence must characterize the defendant's conduct in dealing with the Marsh property, to create any liability for results harmful to the Cady property. The court then emphasizes the proposition in this language: "The Douglas Company, however, in making an excavation on the Marsh land, as well as in taking down the Marsh building, was bound to use reasonable care in the prosecution of the work, and would be liable for injury to the plaintiffs' property resulting from negligence."

Thenceforth the jury are under constant reminder from the court that the defendant's duty was that of an ordinarily prudent man "under the circumstances in which the Douglas Company was placed," that is, circumstances which implied "the ordinarily prudent man's" absolute right to pursue any method whatever in the removal of his building provided only that the method be a reasonably careful one — for this is the unmistakable meaning of the extracts from the charge already referred to. The court nowhere assumes to dictate to the jury, or to advise them what method or what specific acts of the defendant would satisfy the legal standard of care devolving upon it. They are properly left to determine what the conduct was, and to apply the test submitted by the court to further determine whether it was sufficient "under the circumstances" to absolve the defendant from a charge of negligence. So, too, when the court leaves it for the jury to say whether the defendant "did all that an ordinarily prudent man, in its place, would have done for the protection of the Cady building, in removing the other building, in preparing for, and in making, the excavation," it properly assumes that a discriminating intelligence will be brought to bear in weighing the court's cautious qualifications, already given, as to the degree or sort of "protection" owed by the defendant or by one "in its place." The court is not here using the word "protection" in any broad and unlimited sense, as the defendant would persuade us, but using it with distinct reference to a limited and circumscribed duty already defined by the charge with a clear statement of its restricted bearing — the duty of proceeding with reasonable care. The extent of this duty can be accurately measured only by the exact conditions of the case calling for its exercise. What amounts to satisfactory performance of it in one situation, falls short of its fulfilment in another. Indeed, while it would have been grossly inaccurate, of course, for the court to intimate to the jury that the burden of furnishing protecting support by shoring or some other similar method is always cast upon one in the defendant's position — it would have been hardly less so to tell them, without qualification, that the necessity to furnish some such support is never cast upon one so placed. Conditions may clearly exist which "will necessitate protection of some kind because of the duty of exercising reasonable care." 1 Corpus Juris, 1219, and cases cited; and "protection of some kind" naturally means protection of the kind most reasonably adapted to the situation — whether it be shoring or something else.

It was therefore quite within the jury's exclusive province to say what was demanded of the defendant to give its conduct the essential quality of reasonable care, and to determine with reference to both what it did and what it neglected to do, whether its course filled the full measure of its duty to the plaintiffs, or left something more to be done — even to the extent of shoring the exposed wall. The summarized statement of the pleadings, — involving, as they did, so far as the trial court's responsibility was concerned, the law behind all three counts of the complaint — and the statement of the respective claims of the parties in presenting the case to the jury, forcibly expose the complex character of the situation which confronted both the court and the jury. When it is remembered that the jury could pass intelligently upon the matters involved in the first count only after carefully determining the extent and practical bearing upon them of each of the several grounds of negligence relied upon, not only as independent factors, but in all their intricate and interdependent combinations, it is apparent that the court's course in dealing with this branch of the case was well chosen for its task. It emphasized the duty of reasonable care on the part of the defendants, and by sufficient reference to the various acts and omissions which were challenged by the plaintiffs as showing a lack of such care, it adequately defined the situations particularly calling for its exercise; it persistently cautioned the jury that the same standard of care was demanded of the plaintiffs in their relations to the matter, and it correctly outlined the different grounds of negligence as pursued by the plaintiffs, and fairly assigned to them their places of relative importance to the case.

In the stress which the defendant lays upon its own claimed immunity under a too narrow interpretation of the law of lateral support, it seems to practically overlook the equally important correlative rule which still holds one in its position to the strict exercise of reasonable care. This "is not based upon any right of property in adjacent land for support of buildings or otherwise. It is simply a restraint upon reckless and unnecessary conduct in respect to the use of such adjacent property, fraught with danger to the building. Its justification is found in a well-established principle, having wide application in English and American jurisprudence, and its application to cases of this kind is as well settled as the doctrine that the owner of a building has no right of support therefor in the land of an adjacent owner. The two propositions are asserted, side by side, in the same decisions, and in practically all of them." Walker v. Strosnider, 67 W. Va. 39, 46,67 S.E. 1087.

We find no real warrant for the defendant's claimed grievance, that the court impliedly gave the jury to understand that shoring, or some equivalent measure for the protection of the Cady building, was imposed as a matter of law upon the defendant, and that, quite regardless of the circumstances of the case, its absence imputes negligence.

But there is another aspect of the matter which makes it relatively unimportant to discuss at length the respective attitudes of the parties before the Huber-Douglas meeting on June 14th. There is a controlling significance on this branch of the case, in what they did, or failed to do, between that date and the time of the building's collapse — six days later. The plaintiffs' claim here necessarily rested upon their admission of knowledge as early as June 14th of a situation threatening grave and immediate danger to the Cady building. This was their avowed reason for the interview which Huber sought, acting not alone for his partnership but for the absent owner. Something for the protection of the building must be done at once; it remained only to be determined who should do it. With that attitude of the plaintiffs established, as it very clearly was to the jury, it makes no difference that the parties are not in accord as to what took place on that occasion, because, whatever occurred, the plaintiffs are conclusively upon record as admitting such knowledge of the situation as called upon them for immediate action for the safety of the building unless they were definitely promised that the Douglas Company would itself take such action. Moreover, it is obvious, upon the admitted facts of record, that the word of Douglas was the word of his Company. The court, it is true, left it for the jury to determine whether that was so, but upon the conceded facts that he was its president, its manager, its "head," and in personal charge of the work, the court might well have taken the responsibility of charging the jury as matter of law that his promise, if he made one, bound the defendant. If the plaintiffs could not safely look to him to speak with the Company's authority, there was apparently no one to whom they might appeal. There was too, as we have already said on another phase of the case, abundant opportunity after June 14th to fully secure the safety of the building. If the plaintiffs thereafter desisted from doing anything to this end because of a definite promise of the Douglas Company to do so, this absolves the plaintiffs from negligence — as the court in plain effect told the jury — and charges the responsibility for the collapse to the Douglas Company, if the lack of support caused it. If, on the other hand, the Douglas Company made no such promise, then the plaintiffs, under the positive charge of the court imposing upon them the duty of reasonable care in the protection of their property, were guilty of effective negligence in view of their knowledge of the situation, its imperative demands, and their confessed failure to meet these demands. This issue was fairly submitted to the jury under instructions that gave deserved prominence to the interview, and to its substance — whatever that might prove to be. If the jury observed them, and we must so assume, their verdict is conclusive that they found for the plaintiffs upon this vital feature, and it is fully warranted by such a finding. Had they discredited the plaintiffs on this branch of the case, their verdict, under the only construction of the court's instructions reasonably open to them, must have been for the defendant.

The defendant claimed upon the trial, and sought to enforce the claim by the offer of evidence, that structural defects of the Cady building, and weaknesses which age had developed in it, were responsible for its collapse. Although a portion of the charge dealing with this subject is embraced in one of the grounds of appeal, we understand that such force as the defendant claims from it in disclosing error in the charge, is in connection with other assignments already discussed. In any event, the charge upon these matters was clearly correct.

Certain assignments of error are based upon portions of the charge dealing specifically with the law involved in the second and third counts of the complaint. These become immaterial with the removal of that part of the plaintiffs' case from consideration. The criticism of the court's summarizing statements of the pleadings and of the evidence, has no merit, and the court's failure to charge in the language of the numerous requests of the defendant, was not error. It is enough to say that many of these requests are disposed of by our treatment of corresponding portions of the charge as given, and that nothing in the rest of them calls for independent notice.

There is no error.

In this opinion the other judges concurred.