189 Ind. 554 | Ind. | 1920
Appellee was, at the time of the happenings hereinafter described, the lessee and in possession of building No. 116, South Michigan street, South Bend, Indiana, and of all floors of the adjoining building, No. 114, above 'the first. Appellant was the lessee of the first floor and basement of No; 114 for use.in connection with appellant’s business conducted in the adjoining building, No. 112, of which appellant was also the lessee. A party wall between buildings Nos. 112 and 114 was a part of each of said last-named buildings, and was depended upon by eách of said parties for support of his leased portion thereof.
Appellant, defendant below, desired to remove said partition, or party wall, between said first floor rooms, in order that it might use the first floors of Nos. 112 and 114 as one salesroom, and desired to cut a door in the foundation wall supporting said party wall for a passageway to and from the basement of No. 114.
With the consent of defendant’s lessor defendant so did, substituting on the first floor iron columns or posts for the wall removed. When said alterations were practically completed and defendant was moving a portion of its stock of goods into the first floor and basement of No. 114, said partition wall gave way, and the floors of the respective parties supported thereby and the goods of each on said floors were dropped toward, or into, said-basement.
Whether defendant’s conduct in changing said wall caused the same to collapse, or whether said wall collapsed because of some fact not connected with defendant’s work, was a disputed question.
Defendant’s first paragraph of answer was a general denial. Upon the issue thus made, as well as the issue made upon the second paragraph, which will be noted later, the cause was tried by a jury,- and a general verdict for the plaintiff was found, fixing the amount of plaintiff’s damages; and this verdict must
The much greater proportion of all the questions which appellant presents here are disposed of if it be found that the doctrine of “independent contractor” does not apply under such circumstances. Having determined the nature of appellee’s rights in said wall, and having determined that appellant under the undisputed facts had no right to disturb appellee’s said possession to his injury, and that he assumed the risk of such disturbance, and the jury having determined that appellant caused, by its work, said wall to collapse, it is immaterial whether appellant used due' care in the prosecution of said work; and it must follow that appellant could not lessen its responsibility by employing a third person as an independent contractor to do said work. Sessengut, Admx., v. Posey (1879), 67 Ind. 408, 23 Am; Rep. 98. See, also, 14 R. C. L. §§24, 26, 30, 35, subject, “Independent Con-. tractor.”
Proof of the matters set up in said second paragraph of answer does not constitute a defense.
The foregoing observations have ignored the allegations in the complaint that said work was negligently done; but defendant earnestly insists that the issues were made and tried solely upon the theory that it was necessary for plaintiff to show that said work was negligently done, and that defendant was called upon to meet said theory only; and that therefore the doctrine of “independent contractor’.’ was in issue and was tried; and that it is unfair now to allow plaintiff, as defendant alleges plaintiff has done pending this appeal, to assert a wholly different theory, to wit, that defendant was in fact a trespasser on plaintiff’s rights, and that a trespasser cannot protect himself by employing an independent contractor to commit the trespass.
It is undoubtedly true that the complaint specifically and repeatedly charges that said work was negligently done by defendant, and it is likewise true that upon the trial of the cause much time was spent by .defendant in an endeavor to show that the work was done with due care, and by plaintiff to show that it was negligently done.
But this does not necessarily follow, as the fundamental and respective relationships of the parties to these properties are recited in the complaint, and were such that defendant could not shift from himself the results of an invasion of another’s property rights to their injury, and then defend by showing that the negligence, if any, which caused the fall was that of a third person who had been selected by the defendant to enter plaintiff’s peaceable possession and do this dangerous work. In other words, this theory must be tried upon the proposition that if there was negligence it was the negligence of the- defendant, although lie may have employed an independent contractor.
Therefore it still follows, even on defendant’s theory, that the doctrine of independent contractor is not a defense, and that all questions presented by this record based upon the doctrine of independent contractor are determined against appellant. If the independent contractor was negligent, causing the injury, such negligence is to be imputed to the defendant. Whether there was negligence in making the changes was, as above stated, fully tried before a jury, and the jury’s verdict, being supported by sufficient evidence on this theory, settles the question, unless the court erred in the remaining matters assigned.
Other items of damage were in issue, and this answer is not that there was “no evidence” relating to said other items. The verdict allowed, for aught that appears, said other items; and, so far as the instant question is concerned, this answer does not justify judgment in favor of defendant for said other items. If there was no evidence as .to the market value of the goods injured, the verdict may be far too large an amount, but no steps were taken to correct it on this account.
There was no error in overruling the motion for judgment on this answer.
six per cent. Appellant’s position is that in actions ex delicto it is within the discretion of the jury whether, and, if at all, at what rate, interest is to be allowed. This rule does not apply where the amount of damage can be learned with reasonable certainty, or by fixed standards, as in this case. See New York, etc., R. Co. v. Roper (1911), 176 Ind. 497, 96 N. E. 468, 36 L. R. A. (N. S.) 952, and decisions cited.
building and wall in question; and in detail stated to the jury the results of such examination and the facts and conditions found by him; and each based his opinion upon such facts as he had stated to the jury. There was no error in permitting him so to do. Bonebrake v. Board, etc. (1895), 141 Ind. 62, 64, 40 N. E. 141; Louisville, etc., R. Co. v. Falvey (1886), 104 Ind. 409, 419, 3 N. E. 389, 4 N. E. 908.
Finding no reversible error, the judgment below is affirmed.