Allied Hotels, Limited v. Barden

• Decision Date: 28 January 1964
• Docket Number: No. 40347,40347
• Citation: 389 P.2d 968,1964 OK 16
• Parties: ALLIED HOTELS, LTD., Plaintiff in Error, v. Iris BARDEN, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 968

389 P.2d 968

1964 OK 16

ALLIED HOTELS, LTD., Plaintiff in Error, v. Iris BARDEN, Defendant in Error.

No. 40347.

Supreme Court of Oklahoma.

Jan. 28, 1964.

Rehearing Denied March 3, 1964.

Syllabus by the Court

1. Where plaintiff alleged facts and presented evidence showing that defendant, an adjacent landowner, diverted surface water from defendant's property to plaintiff's property in such manner as to cause injury to plaintiff's property and also alleged defendant was negligent, it was not error to fail to include an instruction to the effect that before plaintiff may recover he must prove the allegations of negligence, where the jury was properly instructed otherwise.

2. Where one owes a nondelegable duty to third persons, he cannot escape the obligation of performing such duty by engaging for its performance through or by a contractor, and in such cases the rule that an employer is not liable for the negligence of an independent contractor has no application.

3. Where an exhibit otherwise admissible contains objectionable marks or legends, it becomes properly admissible after such marks or legends are excluded, expunged, or erased.

4. Where property can be repaired and substantially restored to its former condition, the measure of damages is the reasonable cost of repairing the damage or restoring the property to its former condition.

5. A cross-appeal must be prosecuted like other appeals or it will be dismissed.

Appeal from District Court of Oklahoma County; W. R. Wallace, Judge.

Action brought by Iris Barden against Allied Hotels, Ltd., a partnership, and others for damages to her real property caused during and after construction of the Ramada Inn Motel in Oklahoma County. Verdict was for plaintiff against Allied Hotels. Its motion for new trial was overruled on condition of remittitur by plaintiff. Plaintiff filed the remittitur and defendant appeals. Plaintiff filed a cross-petition in error. Affirmed.

Gus Rinehart, Byrne A. Bowman, Oklahoma City, for plaintiff in error.

Phil E. Daugherty, William B. Rogers, Oklahoma City, Ames, Daugherty, Bynum, Black, Ashabranner & Rogers, Oklahoma City, of counsel, for defendant in error.

HALLEY, Vice Chief Justice.

Iris Barden, hereafter called plaintiff, commenced this action against (1) Allied Hotels, Ltd., a partnership consisting of Sylvannus G. Felix, Anthony A. Marneres and Eugene Jordan, hereafter called Allied, (2) H & J Construction Company, Inc., a corporation, and (3) Concho Construction Company, Inc., a corporation, for damages to her real property caused during and after construction of the Ramada Inn Motel in Oklahoma City in 1959.

The plaintiff for approximately twelve years prior to 1959 had owned a tract of approximately four and one-half acres bounded on the east by what is now the Cowboy Hall of Fame, on the west by what is now the Ramada Inn Motel, on the south by the Northeast Expressway and on the north by Northeast 63rd Street. Her property was improved by a frame house with asbestos siding, a garage-basement, a concrete swimming pool, a cement walk, and a gravel driveway. The grounds had many trees, shrubs, flowers and grass.

Allied acquired the land to the west of plaintiff's property and contracted with H & J Construction Company to build a large motel thereon. H & J Construction Company contracted with Concho Construction Company to perform certain blasting and dirt moving operations. Plaintiff's property is located downhill from the Allied property, which was virgin land covered by native grass, brush and boulders. During construction plaintiff's property sustained damage from vibration caused by blasting and damage from increased flow of water from the construction site. After construction was completed, plaintiff testified that she still receives certain damage from the increased flow of water from the motel property.

At the close of her evidence, the plaintiff dismissed her action against Concho Construction Company while reserving the right to proceed against the remaining defendants. However, H & J Construction Company demurred to plaintiff's evidence and the demurrer was sustained. The jury was then told by the trial court that the only defendant left in the case was Allied. The jury was also told that none of the issues pertaining to Concho or H & J were to be considered by the jury.

Allied presented its evidence and rested. The jury returned its verdict in favor of plaintiff for $27,700. Thereafter Allied filed its motion for new trial. The trial court overruled the motion on condition that plaintiff remit the sum of $12,700. Plaintiff filed such a remittitur within the time allowed by the trial court's orders. Judgment was entered for plaintiff and against Allied in the sum of $15,000. Allied gave notice in open court of its intention to appeal and filed its appeal in this Court within the time allowed by the orders of the trial court.

Allied argues ten separate propositions of error in its brief. Since some of them may properly be considered together, we will not discuss them in the order they are argued in the brief.

A. Allied's propositions I, II, VI and X are directed at the trial court's asserted error in failing to recognize the basis of plaintiff's action. Propositions VI and X are that the trial court erred in failing to submit the question of negligence to the jury and that the judgment is outside the scope of the issue. Propositions I and II are that the trial court should have sustained its objection to the introduction of evidence or its motion for directed verdict.

Allied states that since plaintiff alleged that Allied was negligent, the trial court should have instructed on this theory and failure to do so is fundamental and prejudicial error. Allied cites City of Henryetta v. Runyan, 207 Okl. 300, 249 P.2d 425; Pechacek v. Hightower, Okl., 269 P.2d 342; Swafford v. Vermillion, Okl., 261 P.2d 187; and Kelly v. Employers Casualty Co., 202 Okl. 437, 214 P.2d 925.

In the case of City of Henryetta v. Runyan, supra, we said that certain instructions were erroneous because they failed to require the jury to find that the defendant's acts in erecting and operating a waterworks caused plaintiff's damages. In the Pechacek, Swafford and Kelly cases, supra, we said that instructions were fatally defective unless they presented the theory on which the case was tried and evidence introduced.

The instruction in the instant case meets the requirements outlined in the above cases. The jury was instructed that they must find that defendant diverted surface water flowing from defendant's property to plaintiff's property 'in such manner as to cause injury' to plaintiff's property before they could return a verdict for plaintiff. We have previously held in cases such as this that the plaintiff need not prove negligent construction. In Oklahoma City v. Bethel, 175 Okl. 193, 51 P.2d 313, we said that no one has the authority to collect water by artificial means and permit it to overflow upon the premises of an adjacent owner in greater volume or velocity than it would naturally flow prior to the construction of such. We said:

'Such acts may well be said to be wrongful and unlawful without regard to the question of negligence.'

In the companion case of Oklahoma City v. Shepherd, 175 Okl. 197, 51 P.2d 318, which arose from the same facts as the Bethel case, supra, we said in part in the first paragraph of the syllabus:

'* * * it is not error to fail to include an instruction to the effect that before plaintiff can recover he must prove the allegations of negligence.'

In the instant case plaintiff alleged and offered proof of the facts that during and since the construction on defendant's property the defendants permitted large quantities of dirt, rock, silt, mud and debris to be deposited on her property which caused injury to her property. She also alleged that the construction was done in a negligent manner. Under the two cases cited immediately above and in these circumstances, plaintiff was not required to prove, and the trial court was not required to instruct on, negligent construction. Therefore the trial court committed no error in its instructions and the judgment is within the scope of the issues made up by the pleadings and the evidence.

Allied's propositions I and II are based on the fact that Allied's acts were all done through independent contractors. Allied relies principally on the case of Oklahoma City v. Caple, 187 Okl. 600, 105 P.2d 209, which states:

'The general rule is that an owner is not liable for the negligence of its independent contractor, except where the...