Stockgrowers' Bank of Wheatland v. Gray , 24 Wyo. 18 ( 1916 )

Scott, Justice.

These cases are docketed as separate cases although they grew out of the same litigation and will be considered in this opinion in the order of their docket number. The bank was defendant below and will here be referred to as the bank and Rachael E. Gray was plaintiff and in both cases will be referred to as such. Rachael E. Gray brought the action in the court below to recover damages for alleged negligence of the bank in excavating its lot which adjoined plaintiff’s lot on which there was a one-story brick- building, and causing the wall of her building to fall, to her damage. The issues were tried to a jury which found a general verdict in plaintiff’s favor, assessing her damages at the sum of $5,540, and at the same time returned answers to certain interrogatories which the court submitted to them at the re-quesfof the 'bank. Judgment was rendered upon the verdict and the bank brings error.

1. The bill of exceptions when first filed failed to disclose certain exceptions, among which was the exception to overruling the motion for a new trial, an exception to the refusal to give certain instructions requested by the defendant, and exceptions to the giving of certain instructions over the bank’s objection and exception, as a predicate for this court to permit the withdrawal of the bill and present the same to the trial court for amendment in accordance with the facts. Permission was accordingly granted. (22 Wyo. 482, 144 Pac. 294.) The tidal court permitted the proposed amendments in part and denied them in part. The plaintiff now moves to strike the amendments so allowed from the bill. It is unnecessary to enter at any great length into the discussion of this question, for if it were not prejudicial error to have allowed the amendment we would be precluded from disturbing the judgment on that ground. It is conceded and no question is here urged that the amendment carrying the exception to the overruling of the motion for the new trial into the bill by amendment was properly allowed. The requests, objections and certain exceptions in the matter of the instructions were carried into the bill upon proof independent of verbal testimony or the recollection of the judge. Among other matters which it was sought by the motion was to amend the bill so as to make it appear that all of the affidavits in support of and in opposition to the motion for a new trial were included in the bill. The court refused to make this amendment upon the ground that it had no sufficient memoranda upon which to base the same. It appears that the lower court predicated its action in allowing the amendments upon the record, files, and what appeared therein, and in no instance relied upon the memory of a witness or his individual recollection, and that being so we are of the opinion that that court acted clearly within its.power and for that reason the motion is denied.

2. It is assigned as error that the general verdict and special findings are not supported by the evidence, are contrary to law and that the court erred in admitting certain evidence over defendant's objection. These assignments involve an examination of the evidence and for convenience may be considered together. The special interrogatories were submitted to the jury at the bank’s request and the jury returned answers to all but the second and fourth. The in-= terrogatories so submitted and answers, in so far as the jury made answers thereto, are as follows, viz.:

“1. Did Charles Goodrich-and Frank Windom have a contract with the bank for the erection of the new bank building? No.”

“2. If your answer to the above question is ‘yes,’ state whether the making of the excavation on the bank’s lot was included in the terms of said contract.” No answer.

“3. Did the bank have any control of the mode or manner in which said Goodrich and Windom were to do the work, other than to accept or reject the work as being in compliance or non-compliance with the terms of the contract? Yes.”

“4. Were the plans and specifications for the bank building sufficient to secure a safe construction of said building, including the making of the excavation? No decision.”

“5. Were Goodrich and Windom careful .and prudent contractors? No.”

“6. Was the work of excavating for said cellar a work that was necessarily dangerous to plaintiff’s building situated on the adjoining lot? Yes.”

“7. Did plaintiff or her agent, Irad W. Gray, have knowledge of the proposed excavation to be made on the bank’s lot, before said excavation was begun? No.”

“8. Did Mr. Goodrich notify Mr. Gray that they were going to excavate at or about the time such excavation was begun? Yes.”

“9. Was reasonable and ordinary care used in making the excavation on defendant’s lot? No.”

“10. Would the soil of plaintiff’s lot have slipped and fallen into the excavation if there had been no building erected On'plaintiff’s lot. No.”

“11. If your verdict is for the plaintiff in any amount, please answer the following additional questions:

“(a) What amount, if any, do you allow plaintiff as damages for injuries to her building? $1,240.00

“(b) What amount, if any, do you allow plaintiff as damages for injury to her furniture and fixtures? $500.00.

(c) What amount, if any, do you allow plaintiff as damages for injury to her stock in trade? $3,200.00.

“(d) What amount, if any, do you allow plaintiff as damages for injury to her business? $600.00.”

Of course, if there was no contract with Windom and Goodrich for the erection of the new bank building as found by the jury, they were not independent contractors, but employees merely of the defendant and doing the work under the latter’s supervision. Nor is the mere fact that they were contractors sufficient to give them the character of independent contractors or that they were treated as such unless the contract itself is susceptible of such construction, and even then if notwithstanding the terms of such contract the bank did in fact retain control and supervision of the work, any negligence resulting in injury would be imputable to the bank. The evidence tends to show that Windom submitted a written bid to construct the new bank building in accordance with the plans and specifications, and which bid was accepted on June 28 and a contract was ordered drawn up, 'but there is no evidence of any final agreement until in August after the accident and that agreement does not appear in the bill, nor is it shown whether signed by Windom alone or by Windom and Goodrich jointly or by whom. The burden was on the defendant to prove the contract as alleged. The bank alleged as a defense that on or about June 15, 1912, through its authorized agents it entered into a contract with Charles Goodrich and Frank Windom, independent contractors, by the terms of which said contract, the said Goodrich and Windom agreed to erect for said defendant, on its ground, a new brick building, according to certain plans and specifications. This is the only contract pleaded and relied upon, and as the plaintiff was not a party thereto we think to be of any effect as against third parties the defendant should be held to strict proof. There is no such contract proven nor any contract shown to which the said Goodrich was a party. Within the issues and on this evidence the jury could reasonably find that there was no contract with Windom and Goodrich to erect the building, although there may have been a contract with Windom alone to erect the building, the evidence of which consisted of the plans and specifications, the bid alone of Windom based thereon and the acceptance of the bid by the bank. But whether the defendant let the contract to Windom alone or to Windom and Goodrich as joint independent contractors it could not escape liability if it was negligent in letting the contract to unskillful and careless contractors whose unskillfulness and carelessness resulted in the injury. In such case the proximate cause of the injury would be imputed to the negligence of the defendant in procuring the work to be done by such negligent, careless and unskillful contractors or workmen. The question as to whether Windom and Goodrich were careful and prudent contractors and further that reasonable and ordinary care was not used in making the excavation was submitted to and found by the jury. Upon this question the court correctly gave the law in instruction No. 12, in which the jury were told what constituted an independent contractor and that if the jury should so find, and further found, “that the work which said contractors agreed to do was not in its nature dangerous to the adjoining property, if done with reasonable care, and that such contractors were skillful and careful contractors, then the defendant can not be held liable for any injury resulting to plaintiff in consequence of the negligence of said contractors or any of their employees in making said excavation.”

The lots of the respective parties were adjoining and parallel, running north and south and facing to the north, the Gray 'lot being more particularly described as the west twenty-five feet of the east fifty feet of lots numbered eleven, twelve, thirteen and fourteen, in block numbered sixty-six, in the town of Wheatland, in the then County of Laramie, now County of Platte, State of Wyoming. For many years both lots had been occupied for business purposes and at the time of the injury complained of Mrs. Gray had a one-story brick store building on her lot, the east wall of which was close to the east line of her lot, which was also the west line of the bank’s lot. There was no cellar under and the foundation of the Gray store building was brick and had been built in a trench 12 inches deep and extended 12 inches above ground at the time of its construction. In June, 1912, the bank moved the old bank building from the lot out into and across the street and on July 3, following, commenced to excavate for a new bank building on the lot, which proposed new building, according to the plans and specifications, was to run seventy-five feet parallel, or practically so, with the foundation of the Gray building and to be sunk to the depth of eight feet for "concrete cellar walls and for foundation. The excavation was made by teams, plows and scrapers, and when at the noon hour of July 5, 1912, a depth of about 5 feet had been reached the earth caved from the Gray lot and the building thereon collapsed; resulting in loss to Mrs. Gray and further damage to her furniture, fixtures and stock of merchandise contained therein. The issues tendered by the pleadings were, first, as to whether the contractors were independent contractors or whether the bank and they bore the relation of master and servant; second, whether the plaintiff was pegligent in failing to shore up and protect her own building; third, as to whether the injury resulted through the unskillfulness and negligence of the bank or its agent in the matter of making the excavation. As to whether it was safe to dig the earth to the depth and length and flush or nearly so with the wall of the Gray building instead of in sections in such proximity to the Gray building and its foundation was a matter of dispute in the evidence and the jury found adversely to the 'bank's contention. There is not nor could there be any question of the bank’s right to construct its building having due regard to the rights of the adjoining lot owner. It is’ not the right to construct the building at all which is here questioned, but the manner of making the excavation whereby it is alleged that the lateral earthen support to the foundation of the adjoining wall was withdrawn, so that thé éarth caved and the building collapsed. Of course, if no duty was imposed on the bank to make the excavation in an approved and workmanlike manner so as to minimize the danger to the adjoining lot owner or occupant of the latter and of the superstructure thereon, or to give timely notice to them of the character and extent of the excavation within which to protect the superstructure from impending danger either inherent or by reason of fault in the manner of making the excavation, there could be no recovery upon the facts in the case. If such were the law there would be no redress for this or similar injuries and resulting damage. Such, however, is not the law. One cannot escape liability for damages to another which results from his own negligence and that of its or his employees, and if they were so unskillful, careless and negligent in the performance of their work, which carelessness and negligence resulted-in the injury, then the jury would be justified in finding and assessing such damage against the bank. The evidence was conflicting as to the skill and ability of the excavating builders and was gone into at great length. There was evidence tending to show that they had been engaged in erecting buildings in the vicinity of Wheatland for several years, and that they had made excavations like and in the same manner as the one here in the clay soil which prevailed in that vicinity and which soil stood without caving, and that noticeably in one case across the street from the excavation of the cellar for the bank building they theretofore had made an excavation several feet deep for the Coors building close to and parallel to the foundation and without injury to the wall of an adjoining two-story frame building which was being used as a hotel. We think the evidence as to that excavation, even though introduced by the bank, may well have been taken by the jury as showing.the contractor’s want of care in taking great risk that the adjoining wall would stand and, as already stated, one of the issues for trial was the care and skill of the contractors. There was evidence to the effect that the proper manner and approved method of making the excavation for the foundation of the wall of the bank building and to have preserved the lateral support of the Gray lot and building was to have removed the earth in sections and filled in the concrete foundation and wall in sections and not to have made or tried to make the excavation its full length and depth before putting in the concrete or other proper supports. It is unnecessary to follow this line of discussion further'. Upon all these issues the evidence was conflicting and we think there was sufficient evidence to support the verdict in that respect.

As already stated, the court, at defendant’s request, submitted the following among other interrogatories to the jury, viz.: “6. Was the1 work of excavating for said cellar a work that was necessarily dangerous to plaintiff’s building situated on the adjoining lot?” To this interrogatory the jury answered, “Yes.” Defendant now contends that the court committed error in submitting this interrogatory to the jury on the ground that it was outside of the- issues made by the pleadings. The issue was raised in the evidence without any objection and if error to have submitted the question to the jury it was in the nature of invited error of which defendant cannot complain.

The fifth interrogatory was directed to the issue as to whether the bank used care or was negligent in selecting its contractors. It was the duty of the bank to select a careful, prudent workman in the line of work involved. Like the sixth interrogatory this inquiry was submitted to the jury at the request of the defendant and it cannot now be heard to complain that the issue was submitted in the form of an interrogatory or that the issue was not within the pleadings.

3. It is contended that the court erred in permitting the witnesses, Irad W. Gray and John Fails, to testify, and its refusal to strike out the testimony as to an alleged conversation had between the said Irad W. Gray and one D. Miller, before any evidence had been introduced to show that the said D. Miller, who was vice president of the bank and was known to Gray to be such officer, had any power or authority to bind the bank by any promise that he might make and before it was proven or shown by the evidence that the bank had any power or authority under 'its articles of incorporation to enter into any agreement or to make any such promise as the said D. Miller was alleged to have made. The order of proof is not ordinarily material so long as that sometime during the trial the evidence is connected up by other competent evidence. The evidence to which objection was made tends to show that the conversation took place on the morning of July 4, and in which Mr. Gray protested to D. Miller, who was on the ground, as to the manner of making the excavation, and that he was afraid the wall would fall, and that Miller responded: “We have got to put this excavation right flush with your wall, because we are going to build a frame here — and he showed me how — and fill it with concrete, and we will have to go flush up with your wall in order to build the frame there and fill the concrete in. But we will take care of your wall. I will guarantee that we will not damage your wall. We will take care of it. We will take care of it with props and braces.” Conceding that this evidence failed as an express or original undertaking of the-bank by reason of failure to show authority of Miller as agent to ‘bind the bank, yet evidence of this conversation and agreement in connection with other evidence in the case cannot be deemed to have been prejudicial to the bank in view of the other findings, for the reason that it neither enlarged or imposed any greater obligation or duty on the bank than existed at the time of such conversation. The action was not for breach of contract, but for negligence of the bank and which negligence is claimed to have been the proximate cause of the injury. The rule of ultra vires has no application in actions for tort. (10 Cyc. 1207.) The bank was under a legal duty to give due and timely notice to the plaintiff to protect her building and it is conceded that such a notice to her agent would have been sufficient of the proposed construction of the new bank building, including the excavation. By timely notice we mean notice for a reasonable time preceding the proposed excavation for plaintiff to take the necessary measures to protect the wall and foundation of her building, and proof of her failure to do so would not prove contributory negligence unless the time was sufficient for that purpose, and the jury were in effect so instructed without objection. There was evidence to the effect that the work which would have been required to properly shore and prop up the wall of her building and render it safe and secure would have been six or seven days. It may be conceded upon the evidence that plaintiff and her agent had knowledge of the proposed excavation to be made on the bank’s lot before the excavation was commenced and the jury by their answer -to interrogatory No. 8 found that Mr. Goodrich, one of the alleged contractors, did so notify Mr. Gray that they were going to begin to excavate at or about the time such excavation was begun. Such notice was only two days before the wall fell, one of which days was a legal holiday. It was the alleged negligent manner in which the excavation was made in view of the conditions and surroundings as disclosed by the evidence that are here complained of. Notice that the excavation was to be made was not notice that it would be made in a negligent manner, but that ordinary and reasonable care and prudence would be used and that the excavation would be made in a workmanlike manner. As to timely notice or when knowledge came to plaintiff was a material issue made so by the pleadings, it being alleged by the bank in its answer and denied by plaintiff in her reply that she knew of the proposed manner of making the excavation long before the commencement of the work and the evidence of the conversation in which the danger first became apparent to her or her agent of the alleged negligent manner of making the excavation was material and competent to show what and when that fact first became known or apparent to her.

The jury found, and the evidence supports the special finding, by their answer to interrogatory No. 9, whereby they found that reasonable and ordinary'care was not used in making the excavation, notwithstanding evidence to the effect that Goodrich and Windom had theretofore made the excavation for the Coors building and other buildings in the same character of soil and in the vicinity of and the same as they did in the bank excavation without the soil caving. These cases were not parallel cases to the one here, for there the evidence did not show as it tended to show in this case that the soil was soaked and rendered soft with rainwater from the'roof and eaves of the old bank and Gray buildings, nor the difference in weight of the material of which the adjoining building was constructed. It was proper to take these facts into consideration as bearing on the question of negligence of the contractor or owner in constructing a building or making improvements, and fixing the degree'of care required according to such physical conditions. The ordinary care that is required is the care and skill to meet the conditions which are apparent or known to the owner or contractor at the time of commencing the excavation and if the excavation or the maimer of making it is reasonably liable to injure the adjoining lot, building or superstructure thereon, the owner is entitled to reasonable notice, so that he may protect his property. The excavator cannot rely upon the inherent defects in the construction of the adjoining building in the absence of such timely notice to the owner, so that the latter may protect his own property. Such duty arises out of the nature of the case, and a due regard for the rights of others. Such is the trend of modern decisions, although it may be conceded that the earlier English and state decisions were the other way. (Walker v. Strosnider, 67 W. Va. 39, 67 S. E. 1087, 21 A. & E. Ann. Cas. 1.) The bank having on the trial repudiated the conversation complained of or the authority of Miller to bind the bank by a guaranty of safety to the Gray building and no evidence being introduced by it of timely notice cannot now be heard to urge that plaintiff was bound by the negligence of the contractors in the man'ner of making the excavation. It is not the right to make an excavation at all, but the manner of making the one in question that is here complained of. It is alleged that the-excavation was carelessly and negligently made, and in view of the surrounding physical conditions, together with evidence further tending to show the want of care and the want of skill and workmanship of the excavators, fully warranted and supports the finding of the jury to that effect by their answer to the ninth interrogatory. These issues were all submitted to the jury. ■ We are of the opinion that the verdict and findings are supported by and that they are not nor is either of them contrary to the evidence nor contrary to the law, and that there was no prejudicial error in the matter of the admission or rejection of evidence.

4. It is assigned as error that the verdict was excessive and appears to have been the result-of passion or prejudice. The jury were required to find the different items of damage and return them separately and the amounts so found are within the proof and in the aggregate are within the issues. We discover no indication of the jury acting under prejudice or passion in their finding or in the assessment of damages.

5. There are seventy-two assignments of error. They are mostly objections and exceptions to the refusal of the court to give instructions requested by the bank and objections to those given by the court. To discuss these alleged errors separately would unnecessarily prolong this opinion, and in view of the theory upon which the case was tried as disclosed by the record and the discussion already had we find no prejudicial error and that the court correctly instructed the jury upon the law of the case, and for that reason we do not deem it necessary to prolong the discussion. Indeed, the case appears to have been carefully tried and the learned trial judge is entitled to great credit for the ability and care displayed in the trial, both in the matter of ruling upon the evidence and the instructions given to the jury.

6. The errors assigned and which we have considered are and were raised by the motion for a new trial. After the term at which thé case was tried the defendant sought by a-petition to set aside the verdict and judgment, and for a new trial upon the ground of, first, misconduct of the jury, and, second, for misconduct of the prevailing party, the evidence of which is alleged to have 'been unknown and that it could not with reasonable diligence hav.e -been discovered prior to the filing of such -petition. Issue was joined and the matter coming on for hearing the court denied the petition and the bank brings error. The questions presented were issues of fact and the evidence so far as before this court was conflicting, and for that reason the finding of the court cannot be disturbed.

During the hearing upon this petition the evidence developed that during the trial the husband of the plaintiff, who was acting as her agent in and during the trial, and while leaving the court rooni at a recess of the court and in going down the stairway from the court room took a. cigar from his pocket and lit it and then took another cigar from his pocket and handed it to one of the jurors who was a member of the trial jury. This matter was unknown to the defendant up to this time and was by amendment incorporated in the petition. This conduct was reprehensible and for one connected with the case as Mr. Gray is shown to have been would have been sufficient ground for the trial court to have set aside the verdict, .but whether, this court sitting as a court of review should do so is another question. This court can 'only reverse for prejudicial error appearing upon the record. Gray said in his evidence that he had no recollection of the incident, was not acquainted with the juror and did not know at the time that he was on the jury, but probably did give him the cigar by reason of force of habit and not otherwise. The question does not rest alone upon the intention with which the cigar was given or the memory of Gray or whether he knew the donee was on the jury, but rests rather upon the impression, if any, the occurrence would make on the mind of the juror. It was a question of fact of which the trial'court had original jurisdiction and the witnesses, including the juror, were before that court during the trial and that court had an opportunity to see and observe the juror and come to some conclusion as to wdiether he was or would be likely to have been influenced by the incident or if prejudice resulted to the bank thereby. These matters entered into the question then pending before the trial court, matters which it is obvious cannot be brought into the record and enter into the consideration of the question here. We cannot say from the record that the finding of the court or ruling on this question was prejudicial to the defendant or that the court abused its discretion or erred in denying the motion, and for that reason the finding and ruling will not be disturbed, especially as the certificate of the trial judge to the amendment to the ‘bill of exceptions recites that he is unable to state whether the bill as amended contains all of the affidavits in support of or in opposition to the application. For like reasons other alleged misconduct of the prevailing party cannot be reviewed.

Finding no prejudicial error in the record, the judgment will be affirmed. Affirmed.

Potter, C. J., and Beard, J., concur.