Cooper v. Sillers

30 App. D.C. 567 | D.C. Cir. | 1908

Mr. Justice Van Orsdel

delivered the opinion of the Court:

Reviewing briefly the instructions requested, we are of the opinion that the first one was properly refused, for the reason, as we shall observe later, that there was, in our opinion, sufficient evidence offered to justify the court in submitting the case to the consideration of the jury. As to the second prayer offered by appellant, and refused, the court, in its own instructions, charged the jury that there is nothing contained in the building regulations of the city which applies to party walls existing at the time of the passage of these regulations. The appellant could, therefore, be in no wise prejudiced by the refusal of the court to grant his instruction. The court, however, gave the instruction requested by appellant, omitting therefrom the words “contrary to the provisions of the building regulations.” In the third prayer requested by appellant it was sought to instruct the jury to the effect that if they found that the appellant had been negligent they could only award damages for such injuries as appellees suffered from the use of the wall between the date when appellant first used the wall and the date when it was relieved of the burden of carrying the weight of appellant’s building. This request does not state the law. The appellant, if liable at all, was liable not only for the damage that accrued during that period, but for damages that directly or proximately resulted from the injuries inflicted. The fourth prayer requested by appellant was likewise properly refused, for the reason that it is not a correct statement of f.; law. It is well settled that, though damages accrue after the institution of the suit, they may be recovered, provided they are the natural and proximate consequences of the act complained of, and do not themselves constitute a new cause of action. Actual damages in such case are assessable up to the date of the verdict. Wilcox v. Plummer, 4 Pet. 172, 7 L. ed. 821; Fifth Nat. Bank v. New York Elev. R. Co. 28 Fed. 231; Fowle v. New Haven & N. Co. 107 Mass. 352; Cooke v. England, 27 Md. 14, 34, 92 Am. Dec. 618. The fifth prayer requested by appellant was fully covered in the general instructions of the court, given on its own motion, to the effect that, before the jury could return a verdict against the appellant, it must find that actual damage was sustained by the appellees by reason of the construction of appellant’s building. The mere imposing of weight and strain upon a wall, in the absence of any damage-resulting therefrom, would not render the appellant liable for damages to the appellees. We think this point was fully covered by the court in its own instructions. The sixth prayer offered by appellant was .properly refused, for the reason that it was. equivalent to instructing the jury that, under the pleadings and evidence in the case, they should return a verdict for the appellant. As before stated, we are of the opinion that there', was ample evidence, as disclosed by the record, to justify the court in submitting this case to the jury, and that it would have been error 'for the court not to have so submitted it.

The evidence offered on behalf of appellees tends to show that when appellant, in constructing his building had reached the height of appellees’ house, the appellant first discovered that the party wall was only a 9-inch wall. He then, in conformity with the requirements of the building inspector of the-city, erected a steel frame or steel support to relieve the weight imposed by his building upon the party wall. It also appears that, during and after the erection of appellant’s building, the wall in question was injured, cracked, and made to settle. Evidence was produced to show that, prior to the erection of the building of appellant, the wall and premises of the appellees were in good condition, and repair, as also were the ceilings, doors, and flooring thereof. The evidence also tended to establish that, by reason of the construction of the building of the appellant, not only the wall, but the doors, windows, ceilings, and other parts of appellees’ house were damaged. The damage to appellees’ building was estimated by the witnesses at from $1,200 to $1,500.

The appellant offered evidence to show that the weight which had been imposed upon the wall was not greater than a 9-inch wall in good condition could bear without injury. He also produced evidence to show that the cracks found in the wall were old ones, due to the age of the building, and had not been occasioned by the construction of appellant’s building. Appellant admitted that he did not discover that it was a 9-inch wall until he had constructed his building to a point on a level with the fourth floor of appellees’ house.

We are of the opinion that appellant, by securing a building permit alleging therein that the party wall was a 13-inch wall, and by his admission that he did not discover that it was a 9-inch wall until he had constructed his building to a point on a level with the fourth floor of appellees’ house, was thereby guilty of negligence. The negligence consisted in not ascertaining, before securing a building permit, the thickness of said wall, and in not making any investigation as to its thickness or condition, until he had imposed the weight upon it which, according to the evidence disclosed by appellees’ witnesses, produced the alleged damage. Negligence being established, the liability for damage as a result of that negligence follows. It is conceded that inasmuch as this wall had been constructed long prior to the establishment of the building regulations within the District of Columbia, that such regulations could not apply to it.

The appellant pleaded the bar of the statute of limitations to the amended declaration. There is nothing, however, to show that this defense was insisted upon, or specially called to the attention of the court below; and the plea seems to have been entirely abandoned by appellant. There is no assignment of error upon this point. This court will only consider errors that are properly assigned, and which have been called to the attention of the trial court, and a ruling made thereon, and to which exceptions have been taken.

A motion was filed in this court by appellees to dismiss the appeal for the reason that appellant had neglected to comply with the requirements of the rules of court in filing his brief. The motion was not presented before the argument and submission of the case. It is therefore unnecessary to consider it. It is denied.

We are of the opinion that the evidence, as disclosed by the record, is sufficient to support the verdict, and that no error was committed by the trial court in instructing the jury upon the law of the case. The judgment is therefore affirmed, with costs, and it is so ordered.

Affirmed.