Swisher v. Sipps, 19 Pa. Super. 43

Swisher v. Sipps

19 Pa. Super. 43 | Pa. Super. Ct. | 1902

Opinion by

Beaver, J.,

The court below is sought to be convicted of error in this case under two separate specifications. In the first, one of the defendant’s points for charge is quoted at length. The specification then proceeds to say: “ The answer was — ” and then follows a portion of the general charge which is only a part of the paragraph relating to the subject and which omits that portion which is most responsive to the defendant’s points. As a matter of fact, the court below refused all the points of both plaintiff and defendant, except as they were answered in the charge. The charge itself covered all the points in the case. It was brief but the experienced trial judge who tried the case was very familiar with cases arising under the proper use of party walls and charged distinctly that there could be no recovery “ for what you may call the results of building and the necessary interference with the neighbors on both sides of a place where a new building is being erected.” This was distinctly admitted by the plaintiff in the court below and in the argument here. The claim was for special, substantial damages arising from improper interference with the party wall and negligence in the construction of the adjoining building (a) in that the party wall, which was but eight inches thick, was, both in the cellar and under the girder which supported the second story for a distance of eighteen inches, partly demolished; (5) in consequence of the removal of the party wall entire at the second story, the front wall was pushed outward which, it was alleged, would not have happened, if the defendant’s side of the party wall had been properly removed; (e) that, in consequence of the removal of the entire wall at several places, dust and dirt came through upon the plaintiff, necessitating the removal of his stock of music, etc., and creating substantial *47loss by its deterioration; (d~) that the skylight was broken several times and, upon complaint, was battened down, so as to exclude both light and air; (e) that the flues were filled up with brick and mortar and interfered with the use of the plaintiff’s building for the purposes of his business, etc. All these were questions of fact and were entirely separate from the ordinary annoyance, dust, discomfort and confusion which must necessarily arise from the erection of an adjacent building. Even if the complaint of error were properly assigned, there is abundant evidence in the case, of special damages, which could not be withheld from the jury; and, in the manner in which the question was submitted, there was no error.

The second specification of error is as to the measure of damages laid down by the court. This question was disposed of as follows: “ The damages, if you find that he suffered any, should be such as to compensate him or to repay him for the injury he has sustained.” This, taken in connection with the former part of the charge that there could be no recovery for the ordinary annoyance, inconvenience and dirt resulting from the erection of an adjoining building was entirely correct. The damages must, of course, be such as were special, as was clearly indicated in the former part of the charge. The charge, though brief, was comprehensive and covered the entire case, without dwelling upon the details of evidence on either side. The jury could not have been misled either as to the proper subject of damages or as to the measure thereof.

It may be well, before dismissing our consideration of this case, to refer to the appellant’s statement of the question involved. The object of such a statement is to give the court, at a glance, a comprehensive view of the case, so as to be able to follow intelligently the oral arguments which are valuable only as they present the points of law arising from the questions of fact which are fairly raised by the entire record. In this case the statement of the question involved is presented under two distinct propositions : “ 1. Is the inevitable dust and inconvenience to a plaintiff arising from the defendant’s demolition of an old and the construction of a new city building, in the customary and usual way, a cause of action alone, without some evidence of negligence or want of skill? 2. For three small cracks in a wall which .could be repaired by a trowel mea*48sure of mortar is the legal measure of damage the cost of rebuilding the wall ? These are practically self-evident propositions, to which a negative answer would be immediately given, but they do not cover the questions involved in any sense. They do not include the plaintiff’s view of the case, they raise no issue and are both satisfactorily answered by the charge of the trial judge in the court below in the negative, as defendant . claims they should be answered, and are practically admitted by the appellee. Judgment affirmed.