Samuel v. Novak , 99 Md. 558 ( 1904 )

This is an action of tort, brought by the appellants against the appellees to recover damages for injuries to the appellants' house, occasioned by the alleged carelessness of the appellees. It is alleged in the declaration that the appellees while engaged in removing a building adjacent to the property of the appellants, "willfully, carelessly and in an unskillful and unworkmanlike manner, negligently and wrongfully tore down and removed a building adjacent to the property of the said plaintiffs, and then and there excavated and went below the foundation walls of the plaintiffs' property, without notice to said plaintiffs, and that by reason thereof the property of the plaintiffs was structurally weakened and said property collapsed and fell in, c."

The defendants plead the general issue; and the judgment being for them, the plaintiffs appealed.

The proof shows that on Friday, the 16th of May, 1902, the appellants were notified by Mrs. Schlutter, the owner of the property about to be improved, that they "could not go ahead with their work, without underpinning her property." At that time the Schlutter building was entirely down, and an excavation or ditch had been dug for the walls of the new structure, along and below the foundations of the walls of the appellants' house. Mrs. Samuel on the same day entered into an agreement with the defendant Novak, in which the latter agreed for a consideration of fifty dollars to do the work of underpinning the walls of the appellants' house and to proceed with the work on the Monday following. Novak however, did not begin this work until the following Tuesday. At the time this agreement was made, the walls of the Schlutter building were entirely down, and there were no props, braces or other precautions to protect the wall on the adjoining property, except "a narrow board extending midway across the Schlutter lot." There was evidence offered, tending to show that it was a custom among builders, while tearing down a building "similar to this," to protect the wall on the adjoining property by the use of props and braces; and the fall of the appellants' wall, was caused by the excavation upon the appellees' lot.

The Court granted two prayers, both offered by the defendants. The appellants asked no instructions.

One of the granted prayers of the appellees instructed the jury that "by the theory of the plaintiffs' case," that is, (as we construe the phrase) if they found that the injury to the appellants' property was occasioned by the failure of Novak to properly perform a contract entered into between the plaintiffs and Novak for the protection of their property, their verdict must be for Novak.

The hypothesis upon which this instruction is based requires that the jury shall find, as the condition of Novak's liability, that the injury was caused by his failure to perform his contract to underpin the plaintiffs' wall. If this were found to be the cause of the injury, and not the negligence of the defendants in making the excavation, then it seems to be clear that the only cause of action the plaintiffs would have, would be against Novak for a breach of the contract in not properly performing the work of the underpinning, and not for negligently making the excavation. Upon the hypothesis of this prayer, no recovery could be had against Novak, except upon an action ex contractu for a breach of his contract. "It is impossible," said this Court, "to disregard the substantial principles which underlie our system of jurisprudence and to some extent govern the forms of action. These principles must still be recognized, however the new form may be changed or simplified."Stirling v. Garritee, 18 Md. 475.

This instruction was therefore properly granted.

By the other prayer, the case was taken from the jury, so far as concerned Dora J. Schlutter. They were directed to find for her, "because it appears from the plaintiffs' case the work of excavation on the defendants' lot was wholly committed by her to an independent contractor; that the injury to the plaintiffs' house was not reasonably to have been anticipated as the probable consequence of the excavation, but was caused by the negligence of the independent contractor."

This prayer makes two assumptions of fact, viz: That the injury to the plaintiffs' house was not reasonably to have been anticipated as the probable consequence of the excavation, and that it was caused by the negligence of the independent contractor; and from these two facts, because the work of excavation was committed to an independent contractor, the jury are instructed to find for the defendant Schlutter.

The obligation of the owner, in cases of this kind, is fully laid down by this Court in the recent case of Bonaparte v.Wiseman, 89 Md. 21. In that case the legal proposition by the appellant's fourth prayer was that the owner was not liable for the injury to the adjoining property, because the work was done by the independent contractor under the written agreement appearing in the record of that case. The Court after stating broadly the general principle, "that when the work is done by a competent contractor under an agreement which gives him complete control of the work and of the persons employed by him to do it, such persons will be his servants and not those of the employer, and the latter will not be liable for injuries caused by the negligence, because they are not his servants and are not under his control," further said, "but this doctrine has been repeatedly held not to relieve an employer from all responsibility of every kind for the consequences of defective or unskillful work done on his premises even by the servants of an independent contractor." "It has no application where the resulting injury instead of being collateral and following from the negligent act of the employee alone, is one that might have been anticipated, as a direct or probable consequence of the performance of the work contracted for, if reasonable care is omitted in the course of its performance." In the same case it was also said, "the question as to whether such injury might reasonably have been anticipated as a probable consequence" of the work contracted for is a question of fact for the jury. By the contract, which appears in the record, Novak was to dig the foundations to a depth of three feet below ground, and this depth, as the proof shows would carry the excavation below the walls of the adjoining property. Whether injury to the adjoining walls ought reasonably to have been anticipated, was a question of fact, which should have been submitted by the prayer to the jury. Unless the jury found that it was not reasonably to have been anticipated, the owner was responsible for the injury if she did not take reasonable precautions to obviate and prevent the probable consequence. The excavation was not a matter collateral to the undertaking of the contractor; it was one of the things that he contracted to do, and if that, under all the circumstances was such a thing as would probably be injurious to other persons, it was the duty of the owner to provide that reasonable care should be taken to obviate, the probable consequence. But the prayer is defective also, in that it withdrew from the jury the question of fact, as to the cause of the injury. It assumes that it was caused by the negligence of the independent contractor. The excavation was along and below the adjoining walls and no props or braces were used to sustain them. Whether this was the cause of the injury, and whether the conduct of the contractor in making and leaving the ditch open, and the adjoining walls unprotected amounted to negligence on his part were questions of fact to be determined by the jury, and should have been submitted to them to find. There was also evidence of notice to the adjoining owner of the necessity for underpinning her walls, and of delay in beginning that work until the following Tuesday morning. What the effect of all this may be, we are not called upon to determine, as it does not concern any question that this record presents. Whatever it may be however, it cannot remove the objections to this prayer. Nor can we pass upon the prayers of the appellees, that were presented and subsequently withdrawn. They are not now before us, and we cannot consider them.

For error in granting the prayer last referred to, the judgment will be reversed and the cause remanded for a new trial.

Judgment reversed and cause remanded for new trial.

(Decided June 8th, 1904.)