Brasch v. Wesolowsky

• Decision Date: 13 August 1965
• Docket Number: No. 39586,39586
• Citation: 138 N.W.2d 619,272 Minn. 112
• Parties: Marie C. BRASCH, formerly Marie C. Prow, Respondent, v. Gabriel J. WESOLOWSKY, Defendant and 3rd-Party Plaintiff, Appellant, ROCHESTER BLOCK AND SUPPLY COMPANY, Riverside Sand and Gravel, Inc., Leand Fay, Russell Brooks, Garnet Spring, 3rd-Party Defendants, Respondents.
• Court: Minnesota Supreme Court

Page 619

138 N.W.2d 619

272 Minn. 112

Marie C. BRASCH, formerly Marie C. Prow, Respondent, v. Gabriel J. WESOLOWSKY, Defendant and 3rd-Party Plaintiff, Appellant ROCHESTER BLOCK AND SUPPLY COMPANY, Riverside Sand and Gravel, Inc., Leand Fay, Russell Brooks, Garnet Spring, 3rd-Party Defendants, Respondents.

No. 39586.

Supreme Court of Minnesota.

Aug. 13, 1965.

Syllabus by the Court

A contractor owes his contractee a duty to use due care in the performance of his undertaking and that duty is nondelegable.

There was no error by the court under the record here in refusing to give an instruction as to plaintiff's contributory negligence or in permitting the reading to the jury of certain parts of defendant's third-party complaint.

In privity of contract, under the circumstances here third-party defendants who were independent contractors would seem to owe defendant the same duty he owed to plaintiff. We cannot hold as a matter of law that defendant released said third-party defendants from their apparent duty to perform in a workmanlike manner. The question as to whether he intended to relieve them of liability should have been left to the jury. Held that the trial court was not justified in concluding that defendant withdrew his complaint against such third-party defendants.

The trial court's ruling which granted a new trial to plaintiff on the issue of damages only is affirmed, and the matter is remanded for a new trial on the issue of plaintiff's damages and on the issue of liability as between defendant Wesolowsky and third-party defendants Riverside Sand and Gravel, Inc., Leland Fay, and Russell Brooks.

Brown & Bins, Rochester, for appellant.

E. E. Ranta, A. H. Michals, Hvass, Weisman & King, Minneapolis, for plaintiff-respondent.

Hunt, Streiff, DeVinny & Young, Stewartville, for Rochester Block, etc., and Riverside Sand, etc., respondents.

Dingle & Krieger, Rochester, for respondent Fay.

Allen & Delaney, Rochester, for respondent Brooks.

R. V. Ehrick, Rochester, for respondent Spring.

Tyrrell, Jardine, Loban & O'Brien, St. Paul, for Littrup Nielson.

FRANK T. GALLAGHER, C.

This is an appeal from an order of the district court denying the alternative motion of defendant, Gabriel J. Wesolowsky, for judgment notwithstanding the verdict or a new trial.

Plaintiff, Marie C. Brasch, alleged in her complaint that the defendant had been negligent in the performance of an oral agreement to construct a residential dwelling, by reason of which negligence and the unskilled manner of its construction the building's foundation settled and the walls cracked, resulting in damage to the buildings and to draperies, carpeting, furniture, and household goods. Plaintiff sought damages of $50,000. In his answer defendant denied that any damage to plaintiff was due to his negligence or unlawful conduct and alleged that any damage was due to an unavoidable accident or to the contributory negligence or unlawful conduct of plaintiff, her agents, or of persons over whom he had no control. Defendant also instituted a third-party action against several contractors who had participated in the construction of the house. ¹

It appears that plaintiff wanted to build a home patterned after a magazine picture. She contacted defendant upon the recommendation of a real estate broker who was commissioned by defendant for that purpose. Defendant examined plaintiff's lot and indicated some necessary modifications because of the size of the lot. Thereafter defendant had plans for the house prepared by a lumber company and submitted them to plaintiff. An oral agreement was entered into whereby defendant undertook to build the home for 10 percent of the estimated $29,000 cost of construction. ²

Defendant admitted that he held himself out to plaintiff as a general contractor and that he promised, among other things, to excavate to firm soil, put in sound footings, and construct a foundation wall of sufficient strength to support the superstructure. Although it appears that defendant was a skilled carpenter, he had participated in the supervision of the construction of only a few small homes.

Defendant claims that he and plaintiff agreed on a party selected by the plaintiff to do the plumbing; that he consulted with her as to who would do the excavating and who would be the cement contractor; and that the obvious conclusion is that plaintiff did not expect him to do much of the actual construction but only to obtain other competent parties to do the various other jobs. Plaintiff contends, however, that defendant agreed, among other things, to do the excavating to firm soil, to do the block work that would be the support wall for the work and second levels of the home, and to use 24-inch footings, squared off on top, both sides, and the bottom and poured in contact with firm soil of sufficient density to support the house.

The construction of the home began in September 1960 and was completed around the first of the following April at a cost in excess of $38,000. The lot was located on a grade, and the surface had been somewhat leveled with fill. Defendant called in third-party defendant Riverside Sand and Gravel, Inc., to excavate trenches for the basement footings. The operator of the digging machine was told by defendant to dig down to firm soil. After the trench was dug, defendant inspected it and was satisfied that firm soil had been reached. Third-party defendant Leland Fay was hired to put footings in the trenches and this work was left largely to his discretion. Third-party defendant Russell Brooks constructed the foundation wall at defendant's request, and this work was left largely to his discretion. The building blocks were supplied by third-party defendant Rochester Block and Supply Company. Third-party defendant Littrup Nielson, Inc., was retained to excavate for and install the sewer and water pipes. Third-party defendant Garnet Spring was employed by the city of Rochester as the building inspector. Throughout the construction defendant was present from time to time and discussed the progress of the work with the respective third-party defendants other than Spring.

Sometime in May or June 1961, after the completion of the house, considerable cracking began to appear in most of the walls, including a large crack in the concrete slab of the garage floor. During the summer many of the doors got to the point where they could not be closed. When defendant undertook to repair the garage slab, he discovered that the underlying soil was saturated by water. He informed plaintiff that water seepage had caused settlement in both the garage and the house and advised her to install gutters and rainspouts, which had not been included in the construction job.

Plaintiff claims that when defendant observed how the cracks were increasing in size he told her that he didn't know what was causing them or what to do about them and indicated that she should get someone who knew what to do. In any event, another contractor examined the foundation and arranged for the performance of certain soil tests. These tests revealed that the soil upon which the foundation footings rested was of insufficient strength or, from another point of view, that the footings themselves were inadequate to support the structure in relation to the soil strength. After the soil surrounding the original foundation had been removed, it appeared that the foundation, in places, rested upon submerged logs and heavy tree branches. Some of the footings were found to be rounded instead of flat; there was mortar missing from between some of the blocks; other blocks were broken, leaving intermittent gaps in the wall; and the vertical alignment of one of the foundation walls was displaced 1 to 1 1/2 inches. There was no evidence of water seepage in the soil surrounding or supporting the foundation. It was the opinion of the experts who examined the site that any or all of the discovered defects would have caused the house to settle. Plaintiff's home was restored at a cost of over.$19,000, and the reasonableness of this figure was not contested by the defendant.

At the close of the evidence, the trial court dismissed the defendant's third-party complaint with prejudice, apparently on the ground that defendant was satisfied with the materials and work of the third-party defendants (other than Spring) at the time he accepted them. However, in his memorandum attached to the order denying defendant's alternative motion for judgment notwithstanding the verdict or for a new trial, the trial judge upheld the propriety of the dismissal on the ground that the defendant had abandoned his claims during the trial. The jury returned a verdict in plaintiff's favor for $12,400.

On appeal defendant has assigned as error the trial court's failure to direct a verdict in his favor; the dismissal of his third-party complaint; the failure to instruct on contributory negligence and on the agency relationship existing between plaintiff and the third-party defendants; the impropriety of admitting in evidence, as an admission against interest, that part of defendant's third-party complaint alleging negligence on the part of the third-party defendants; and the perversity of the verdict.

1. It appears from the record that at least one of the parties involved was guilty of negligence in the construction of the home. Defendant does not seriously dispute the fact that there were some defects in the construction, but he contends that there is no evidence of his personal negligence. It is his position that he was merely the agent of plaintiff with implied authority to engage subagents to perform those services outside his general type of work. Since there was no evidence of negligence in his selection of so-called subcontractors, defendant argues that the trial court should have directed a verdict in his favor or at least instructed the jury on the question of agency.

There are no facts apparent...