Serio v. Murphy

Fowler, J., delivered the opinion of the Court. The plaintiff below, and appellant in this appeal, brought an action to recover damages caused by the injury of a wall of the house he was occupying as a dwelling. The facts briefly stated are that the plaintiff was a tenant of Dr. Wilbur P. Morgan of the premises known as No. 323 Clay street, Baltimore City, under a written lease which contained a covenant that he was to make all repairs. This he concedes.

Frank J. Murphy is the owner of lots 320 and 322 on the north side of West Lexington street. These lots run back to and also front on Clay street, and adjoin the premises of the plaintiff on the west. Mr. Murphy employed Henry S. Rippel to erect a warehouse on his lot and sent a notice to Dr. Morgan, the owner of the premises occupied by the plaintiff, of his intention to excavate and requesting him to protect the west wall of his house. While this work was in progress according to plaintiff’s witnesses the wall was cracked and badly injured, and the plaintiff was compelled to move out.

He has brought this suit against Dr. Morgan, his landlord, .Henry S. Rippel, the builder, and Frank J. Murphy, the owner, of the lot about to be improved. At the close of the plaintiff’s case the jury were instructed that he had offered no evidence legally sufficient to justify a verdict against either of the defendants, Morgan or Rippel. There was accordingly a verdict and judgment the.reon in their favor and the case proceeded against the remaining defendant Frank J. Murphy. At the close of the testimony offered by the defendant, Murphy, the plaintiff offered one and the defendant five ⁵⁵⁵ prayers.

The plaintiff’s prayer was refused and those of the defendant were granted. These rulings, together with the granting of the prayers of the other defendants taking the case from the jury as to them constitute the only exception presented by this appeal. It is impossible to read the record without coming to the conclusion at once that the trial Court committed no error when at the close of the plaintiff’s case the jury were told that no testimony had been offered by the plaintiff legally sufficient to entitle him to recover as against Morgan and Rippel. The former, as we have seen, was the plaintiff’s landlord, but as such he was not only under no obligation to repair but that duty rested upon the plaintiff himself.

The evidence shows, if it shows anything clearly and sufficiently, that while the excavation was being made upon the premises of the defendant, Murphy, the wall was cracked and badly injured. There is an utter failure, so far as the plaintiff’s testimony is concerned, to connect Dr. Morgan with this work. There is no proof offered by the plaintiff that he was guilty of any negligence or that he failed in any duty imposed on him by law. The notice to the effect that the wall in question as well as a floor joist had been condemned was sent to Dr. Morgan on the 29th April — long after the injury for which this suit was brought had happened — and, therefore, it affords no evidence whatever that Morgan was made acquainted with the bad condition of the wall before it cracked.

But, as we have seen, under the lease it was the duty of the tenant to make repairs if any were necessary. Again, under the provisions -of the City Code offered in evidence by the plaintiff even if there was any evidence that Dr. Morgan failed to comply with the notice to protect his wall, it was the duty of the Building Inspector of Baltimore City to do the work at Dr. Morgan’s expense before the proposed excavation was made on the adjoining lot. In point of fact, however, it was developed in the further progress of the case that the wall was injured while the underpinning was in progress and before the excavation was commenced for the building about to be erected on Murphy’s lot. ⁵⁵⁶ Without prolonging this opinion by a rehearsal of the plaintiff’s testimony it is enough to say that there is no sufficient proof by the plaintiff that Rippel did the work of excavation or that it was done under his supervision or control. But if we assume there was legally