Mullan v. Belbin

³¹⁵ Thomas, L, delivered the opinion of the Court. In June, 1915, the appellee, Charles T. Belbin, owned the leasehold interest in the property in Baltimore City known as 517 East Cross street, which he purchased in 1890, subject to a ground rent of $90.00. The lot fronted about forty feet on the south side of Cross, street and extended back about eighty feet, and was improved by a brick building in which the appellee conducted the business of a shipsmith or “ship-blacksmith.” The building was on the northeast comer of the lot, with a front on Cross street of about thirty-seven feet, and a depth, along the east line of the lot, of about fifty-seven feet, A part of the lot and improvements were within the lines of one of the sections of the street or highway known as the Key Highway, which the Mayor and City Council of Baltimore was engaged in constructing, but at the time of the occurrences which gave rise to this suit the City had not acquired title to* that part of the appellee’s property within the bed of the proposed highway. The City entered into a contract with the Consolidated Engineering Company, a corporation, for the construction of the section of the Key Highway on which the appellee’s property was located, and the appellant, Thomas Mullan, contracted with the Engineering Company to do “the excavation work required under” the contract between the company and the City.

While the appellant was engaged in excavating the bed of Key Highway along and adjoining the east side of appellee’s lot and building, and using a steam shovel for that purpose, the foundation of the building gave way and the walls and roof of the building fell. Thei appellee sued the Mayor and City Council of Baltimore, the Consolidated Engineering Company and the subcontractor to recover damages for the injuries to his building, tools, machinery, stock in trade and business, and this appeal is from a judgment in his favor against Thomas Mullan, the sub-contractor, for $1,650.00. ³¹⁶ The record brings np for review the rulings of the lower ■Court on the demurrer to the declaration, and on the evidence and prayers embraced in nineteen bills of exceptions. The plaintiff produced evidence to show that in constructing the street or highway adjoining the lot and building of the plaintiff, a part of which were, as we have said, within the lines of the street, the earth was removed to the depth of four or five feet; that the work was done by Thomas Mullan, the subcontractor, and his employees, who used a ■steam shovel in making the excavation. The witness, George A. Simms, who was working for the subcontractor, in describing, how the steam shovel worked and what occurred at the time the walls and building collapsed, testified, “That when the bucket (the bucket of the steam shovel) was swinging around it would get right to the building.

That he seen the wall fall down. That he saw the operation of the scoop and bucket. Q. What happened to the bucket? A. Nothing, only digging the dirt from around alongside of the wall .and worked in front of the wall.

Q. Worked what? A. Nothing, only digged the dirt from alongside the wall. Q. ITow close to it? A. Bight up to the wall.

Q. What do. you mean by Tight up to the wall ?’ A. Like if you put your hand up against something. Q. Do you mean it touched the wall ? A. Of' course. Q. Do you mean it touched the wall ?

A. Yes, sir. Q. Where abouts? A. Alongside of it.” He was then asked by the Court: “Did the bucket strike the wall?” and he replied: “Yes, sir; it struck against the side ■of the wall. I don’t know whether it struck under it or how high up*, but I know it struck up* against the side of the wall .and was working close to it.” He further testified that nothing happened after the bucket struck the side of the wall until the superintendent, the walking boss of the defendant, Mullan, gave the order, “To* go ahead and let the—(meaning the building) fall down,” and that after he said that “the man swung the shovel around and began to dig again and the wall fell down;” that the shovel hit the wall again. ³¹⁷ Charles W. Buark, who was at the plaintiff’s building on June 12th a short time “before the accident” and called to see the plaintiff on business, said that he “saw the shovel very near the wall.

He walked into' the blacksmith’s shop,, and had a conversation with Mr. Belbin; after that he went home and did not see the operation of the shovel again. Every time it came up with a dipper full of earth it was. about six inches from the wall, and he could see the bottom of the foundation. The earth was falling from the foundation gradually, and he could see the brick. He judges, the excavation at that time was about four or four and one-half feet deep at the place where he saw the shovel.

James I. Cook, another witness produced by the plaintiff, testified that, he was a “stationary engineer ;” that he lived at 458 Cross street, and that on June 12th, 1915, he was at the corner of Cross street and Key Highway looking at the steam shovel “digging alongside of Mr. Belbin’s wall; that they were jam up to it, showing the foundation, foundation bricks, could not get any closer. That he was looking at them for a while, and he went and set inside the building, in the door on the Cross street side. While he was sitting there an old captain —I think it was Captain Lee—hollered that he wanted the witness to come out, and the witness came out, and when he ran out there the shovel was hung under the foundation of the wall,” and that “When they lowered the shovel and moved the shovel, the wall came down.” Gr. Arthur Belbin, the plaintiff’s son, who was working for his father at the time, testified that he saw the steam shovel working, and the bucket “up against the building” about five or ten minutes “before the building was knocked down;” that “He had time to run up stairs and bring his father down.” The plaintiff and his son stated that the plaintiff’s tools, machinery and stock in trade in the building were injured by the falling of the walls and roof of the building.

The plaintiff testified that there were at least “a half a dozen jobs” that he lost in consequence of the injury to his building, but he could only ³¹⁸ recall two of them, from which, he said, he would have realized a profit of $35.00. The defendant offered evidence tending to show that in moving the earth within the lines of the proposed highway adjoining the plaintiff’s property the bucket of the steam shovel did not go nearer than three feet from the wall of the plaintiff’s building at the top of the excavation, and that the bottom of the excavation was nine feet from the plaintiff’s property; that the east wall of the plaintiff’s building was cracked in several places and was weak. Joseph T. Eallon, who was superintendent for Mr. Mullan and had charge of the work, testified that he had a conversation with the plaintiff on the morning before the wall fell down; that he asked the plaintiff if he had any weight against the wall, and that when he replied that he had, the witness advised him to move it, as there were two or three cracks in the wall and the wall was weak. He further testified that the plaintiff had a great deal of very heavy material against the wall, such as “niggerheads” and “a lot of iron and stuff.” The first, second, fourth and fifth- exceptions were abandoned by the appellant.

James J. Oi’Oonnor, a witness produced by the plaintiff, and an experienced builder of warehouses and dwelling houses, testified that in April before the accident he examined the plaintiff’s property at the request of the plaintiff in order to “appraise the building;” that at that time the building was in very good condition; that he examined the property after the injury complained of in this case, and made an estimate of the cost of “putting the building back in the condition in which it was at the time he saw it in April;” that the building is a total loss, and cannot be repaired, but must be rebuilt in order to put it in the condition it was prior to the accident. Witness was asked by plaintiff’s counsel what it would cost to repair or restore the building to the condition it was prior to the accident. The defendant objected to the question and the Court sustained the objection. He was then asked, “What, in your ³¹⁹ opinion, was the value of that building as it stood in April, 1915 ?” The question was objected to and the third exception is to the action of the Court in overruling the objection.

The witness said, “It was worth about $1,700.00, allowing for depreciation.” The Court asked the witness, “Worth more than that,”—and he replied, “To-restore it.” The appellant insists that the difference between the value of the building before and after the injury was not the proper measure of damages in this case; that the witness was not competent to testify because he had not seen the building between April and the time of the accident on Juno 12th, and it was not shown that he had any expert knowledge of the value of real estate. In Brown v. Werner, 40 Md. 15 , the Court said: “The rule in regard to the measure of damages was correctly laid down by the Court. The action was for a tort, and the plaintiff was entitled to recover for all damages naturally or necessarily flowing from the wrongful acts of the defendants; and if his house was injured by the careless and negligent manner in which the appellants improved the adjoining house, ho was entitled to recover such damages as would be sufficient to reinstate the wall and the house in as good condition as they were prior to the injury,” and in the case of Consolidated Gas Company v. Getty, 96 Md. 683 , the Court said: “The Court instructed the jury thar the measure of damages was what would have been the fair and reasonable cost of restoring the house to its condition as it stood before the explosion. This was clearly right.” It is said in 13 Cye. 150: “As a general rule the measure of damages in actions for injuries to real property is the difference in value before and after the injury to the premises, -x- * -x- jn som0 Casee. the cost of repair or restoration has been adopted as the measure of damages; but in such event the cost of repair must be reasonable and bear some proportion to the injury sustained.” It is obvious that the defendant could not have been injured by this ruling, or the granting of the plaintiff’s sixth prayer, which instructed the jury ³²⁰ that they could allow the plaintiff the difference between the value of the building before it was injured and the value after the injury, together with the actual damage to tools, stock in trade and machinery, because the witness testified that it would cost more to repair or restore the building to its condition prior to the accident than the amount he stated to be the value of the building.

The witness was an experienced builder. He was -not asked to express his opinion as to the value of anything except the building. The evidence in the case tends to show that at the time of the injury the building was in practically the same condition it was when the witness examined it in April. Whatever may be the proper measure of damages in this case, the defendant has no ground to complain of the ruling .in this exception or the granting of the plaintiff’s sixth prayer, so far as the measure of damages is concerned, and we think the evidence was otherwise free from objection.

The sixth and seventh exceptions are to the testimony of G. Arthur Belbin, the plaintiff’s son, containing an estimate of the cost of putting the tools and certain parts of the machinery in the plaintiff’s building in the condition they were before the building was destroyed. The witness testified that he had been in the business for about twenty-five years;, that he and his father made the tools, and that they did work of the kind necessary to repair and reset the machinery, and knew how long it would take and what it would cost, and we think the evidence was, therefore, admissible. The eighth, ninth, tenth, eleventh and twelfth exceptions, are to the rulings of the Court admitting and refusing to strike out the testimony of G. Arthur Belbin, offered for the purpose of showing the plaintiff’s loss of profits in his. business by reason of the injury to his building. The evidence referred to in these exceptions was clearly inadmissible under the decision of this Court in Gossage v. Phil., B. & W. R. Co., 101 Md. 698 .

In the case of Svea v. Packham, 92 Md. 479, the Court said: “It is well settled in this State ³²¹ that in actions of tort the loss of profits in a trade or business may be recovered, if it be the direct result of the defendant’s wrongful act and is proven with sufficient certainty.” The witness did not state what the profits amounted to in any one month or year during the period referred to in his lestimony, and could not tell from bis books or bankbook wbat the receipts from or expenses of the plaintiff’s business were during’ the period covered by his evidence. While this evidence was inadmissible for the reasons stated, we do not think there was reversible error in any of the rulings referred to. Some of the motions to strike out the evidence were too general, and as it was not possible for tbe jury to determine from the evidence what profits the plaintiff lost by reason of tbe injury complained of, the defendant could not have been prejudiced by the rulings. Moreover, in the instructions granted in the plaintiff’s sixth prayer as to the measure of damages the plaintiff was entitled to recover, loss of profits was excluded from the consideration of the jury.

At the close of the plaintiff’s testimony a controversy arose between the Mayor and City Council of Baltimore and the defendant, Mullan, as to who should proceed with the testimony. The matter being submitted to tbe Court, tbe Court decided that the defendant, Mullan, should proceed with his testimony, and this ruling is the basis of the thirteenth.excep*tion. The matter was entirely within the discretion of the lower Court, and its action cannot be reviewed on appeal by this Court. The defendant offered in evidence the ordinance of the Mayor and City Council of Baltimore providing for the opening of Key Highway, and to prove that the property of the plaintiff was within the section .of the Key Highway referred to in tbe ordinance; that the Commissioners for Opening Streets of Baltimore City awarded to the plaintiff for the part of his property within the lines of the highway damages to the amount of $1,486,40; that said award was increased bv the Commissioners for Opening Streets to the sum ³²² of $1,736.40, and that the plaintiff had appealed to the Baltimore City