Irwin v. D.C. Meese

38 N.W.2d 867, 325 Mich. 344, 1949 Mich. LEXIS 359

Opinion

Dethmers, J.

Plaintiffs, as owners of a house and lot occupied by them as their home, sued defendant for damages resulting from the latter’s excavation of his adjacent lot' and removal of lateral and subjacent support from plaintiffs’ land. At the conclusion of plaintiffs’ proofs defendant moved for a directed verdict on the ground that it was not shown that defendant was the owner or occupant of the adjacent property or had done or had anything to do with or was in any way responsible for the excavating. Plaintiffs moved to reopen the proofs for the purpose of establishing the point. The court denied plaintiffs’ motion, reserved decision on defendant’s motion under the Empson act, permitted the defense to proceed with its proofs and, after verdict by the jury for plaintiffs in the amount of $1,850, granted defendant’s motion for judgment non obstante veredicto for the reason advanced in behalf of his motion for a directed verdict.

At the outset it should be said that if the trial court, at the conclusion of plaintiffs’ proofs, entertained doubt that plaintiffs had established defendant’s connection with the cause of action, it should have granted plaintiffs’ motion to reopen the proofs at that time.

At the conclusion of plaintiffs’ proofs the testimony included the following:

(Examination of plaintiff Harold "W. Irwin.)

“To my knowledge the defendant or his agents did not establish any props to support my land while they were excavating * * * The defendant did not perform any act, to my knowledge, that would serve to replace the land he removed as a support. # * #

“Q. (Drawing diagram on blackboard.)

Now, letting this represent your property, I believe it is Lot 24 is the one to the east, is that correct, or is it 25, of your two lots'?

“A. Lot 24 is the one with the house on it.

“Q. 24. All right. And this the property here that you claim was owned by Mr, Meese (drawing on blackboard).

“A. To the east.

“Q. We will call that ‘X’ for the time being. * * *

“A. I was there from day to day as the work was being done on the property to the east. * * *

“Q. * * * Now, you were there at all times while Mr. Meese or any other person under his direction did work there, weren’t you, from day to day, as you told us ?

“A. Yes. * * *

“I do not know how far it is from the west side of the house on Meese and Kissinger’s lot to the lot line. * * *

“Q. You have alleged that you need a wall 65 feet long to stop the erosion created by the defendant’s excavation, have you not?

“A. Yes.

“Q. Is that all the wall you are going to need to correct this condition?

“A. No.

“Q. How much more wall are you going to need other than what you are alleging as damages from the defendant?

“A. Another 10 feet.

“Q. And why do you need an additional 10 feet?

“A. For the excavation that was — that took place after Mr. Meese left it. * * *

“Q. Now, lets go hack to the time this excavation was made by Mr. Meese, the defendant.

“Mr. Conley: Well, just a moment. If the court please, there hasn’t been any testimony to that effect yet.

“Q. Well, did or did not Mr. Meese excavate the land adjoining your property on the east?

“Mr. Conley: If he knows.

“A. Not himself.

“Q. Did he or his agents?

“A. His agents. * * *

“A. I called Mr. Meese on the telephone. * * *

“A. As a result of that telephone conversation, Mr. Meese came over to see me. * * *

“Q. What did you say to him, and what did he say to you? * * *'

“A. I asked him what he was going to do about the situation that existed along the west wall.

“Q. Yes.

“A. And he said it was his understanding that it was my responsibility to build a wall, and I didn’t agree with him. And after we talked the whole thing over, I don’t remember the exact words, it was quite a long time ago, but a few things I do remember about the conversation were that he at no time said that he did not make the excavation. * * *■

“A. All right. He did at that time say that he would contact his lawyer to find out more about it, whether it was his responsibility or not. Then subsequently after that — that was all that took place at that one, as near as I can remember. After that he came over to see me again shortly after that, and .agreed— * * *

“A. He said that he would build a wall, a retaining wall, during that conversation, * * *

“A.'* * * Mr. Meese did not build a wall there. I talked to Mr. Meese’s son. He approached me on the excavation and brought a paper that Mr. Meese had written for me to sign. I saw the paper and read it. I did not sign the paper.”

The above constituted ample evidence from which the jury might conclude that defendant was the owner of the lot to the east adjacent to plaintiffs’ property, responsible for the excavation thereon and liable for removal of plaintiffs’ lateral support. In truth, that conclusion is well-nigh inescapable, without regard to defendant’s explicit admissions thereof on the witness stand after his motion for directed verdict.

The judgment non obstante veredicto is reversed and the cause remanded for entry of judgment on the jury’s ve'rdict for plaintiffs in the amount of $1,850. Costs of both courts to plaintiffs.

Sharpe, C. J., and Bushnell, Boyles, Reid, North, Butzel, and Carr, JJ., concurred.