Bluemlein v. Szepanski, Docket No. 46406

• Decision Date: 24 October 1980
• Docket Number: Docket No. 46406
• Parties: Colleen V. BLUEMLEIN, survivor of herself and Melvin P. Bluemlein, deceased, d/b/a Melcraft Marine, Plaintiff-Appellee, v. Cecil M. SZEPANSKI and Helen A. Szepanski, d/b/a Szepanski Lumber andd/b/a Szepanski Enterprises, jointly and severally, Defendants-Appellants. 101 Mich.App. 184, 300 N.W.2d 493
• Court: Court of Appeal of Michigan — District of US

Page 493

300 N.W.2d 493

Colleen V. BLUEMLEIN, survivor of herself and Melvin P.

Bluemlein, deceased, d/b/a Melcraft Marine, Plaintiff-Appellee, v. Cecil M. SZEPANSKI and Helen A. Szepanski, d/b/a Szepanski

Lumber andd/b/a Szepanski Enterprises, jointly and

severally, Defendants-Appellants.

Docket No. 46406.

101 Mich.App. 184, 300 N.W.2d 493

Court of Appeals of Michigan.

Oct. 24, 1980.

Rehearing Denied Jan. 9, 1981.

Released for Publication Jan. 29, 1981.

[101 MICHAPP 186] Thomas D. Burkhart, Saginaw, for defendants-appellants.

[101 MICHAPP 185] Craig H. Dill, Saginaw, for plaintiff-appellee.

Before CAVANAGH, P.J., and HOLBROOK and PIERCEY, ^* JJ.

PER CURIAM.

Plaintiff, Colleen V. Bluemlein, d/b/a Melcraft Marine, brought a civil action against the defendants, d/b/a Szepanski Lumber and Szepanski Enterprises, charging negligence, breach of implied warranty, and breach of contract. She sought to recover damages caused by the collapse of the roof on a building built by defendants. The trial court dismissed the implied warranty and contract claims prior to any proofs being offered, and a sufficient jury trial resulted in a verdict of $40,000 in favor of the plaintiff. Defendants appeal as of right.

In October, 1967, defendants contracted to construct a steel pole barn for the sum of $10,800 on property being purchased by plaintiff and her then-living husband in the City of Saginaw. The building was to be a shell with a roof. Electricity and permanent flooring were not included in the contract.

The roof was supported by wooden trusses which were constructed by the defendants' work crew. An accident occurred during the construction period in which two or three of the twenty-one trusses built by the defendants fell from their temporarily-installed position and broke. The broken trusses were repaired and put back up instead of being replaced with new trusses.

The work was completed on the building in December, 1967. The building was used in plaintiff's business for storage of new and used boats for [101 MICHAPP 187] sale and for storage of customers' boats. Either late in the evening of January 29, 1976, or in the early morning hours of January 30, 1976, the pole barn collapsed. Building inspectors for the City of Saginaw were notified of the collapse, and they inspected the site on January 30, 1976.

An engineering firm was contacted by plaintiff, and their representatives visited the scene two days after the collapse. The collapsed building was examined by the engineers, snow accumulation was measured, photos were taken, and the truss system was examined. Plaintiff hired a construction company to remove the roof of the collapsed building and preserved the broken trusses for later examination.

Plaintiff filed suit on or about July 9, 1976, alleging negligence, breach of warranty, and breach of contract. Defendants answered, asserting several affirmative defenses.

Immediately preceding the selection of the jury, the attorney for the defendants orally argued for dismissal of portions of the plaintiff's complaint, claiming that plaintiff, Colleen V. Bluemlein, was not a proper party in interest. Defendants also argued that the statute of limitations on contracts had run. They did not argue that the statute of limitations had run on the claim of negligence. The trial court dismissed the portion of plaintiff's complaint pertaining to breach of contract and breach of warranty but denied the defendants' motion as to improper party in interest.

Testimony from several experts appearing on behalf of plaintiff was received at trial. The experts testified that the snow depth on the roof at the time of the collapse was approximately eight inches. Based on computations, the actual live load on the roof at the time of the collapse was 13 [101 MICHAPP 188] pounds per square foot. The universal code and the city code required this type of roof to withstand a live weight capacity of 30 pounds per square foot. Photographic exhibits of the roof trusses, chord members, and gusset plates were admitted at trial. Several experts stated that they could find no evidence that anything was suspended from or piled on the trusses when they viewed the scene of the collapse. A city building inspector, a consulting engineer, and a professor at Michigan State University, called as plaintiff's expert witnesses, all testified that the collapse was caused by inadequate bonding of various parts of the trusses. Their opinion was that the defendants improperly glued and nailed the component parts of the trusses.

No expert witnesses were called by the defendants. One of the carpenters who built the pole barn for the defendants was called as a witness. He testified that he and another carpenter built the trusses for this particular building. He gave no specific explanation for the collapse other than the possibility of some unseen defect in the wood. He acknowledged that the pole barn should not have collapsed in the period of time that elapsed after its completion. On cross-examination, the carpenter acknowledged that, during construction of the barn, four or five trusses fell down and broke and were patched and put back up on the building instead of being replaced.

Defendants assert that the trial court improperly declined to instruct the jury on comparative and contributory negligence. The propriety of a court's instructions on comparative and contributory negligence depends on whether the record reveals sufficient evidence to support such instructions. Jaworski v. Great Scott Supermarkets, Inc., [101 MICHAPP 189] 403 Mich. 689, 697-698, 272 N.W.2d 518 (1978). The court in the instant case found that from the facts in the case there was no evidence, even construed in the light most favorable to the defendant, which would establish negligence on the plaintiff's part. Several witnesses testified that nothing was suspended from the roof of the building. Witnesses who examined the roof shortly after the collapse testified that nothing had ever been suspended from the roof. In the absence of any evidence to demonstrate negligence on the plaintiff's part, the jury should not have been instructed on comparative and contributory negligence. The trial court acted properly in declining defendants' request for jury instructions on this point.

We next consider the claimed defense of the statute of limitations, even though this argument was not raised at the pretrial conference because of defense counsel's failure to attend the conference. We find that the trial court impliedly waived the pretrial conference because there was no subsequent pretrial held and the trial judge entertained arguments on this defense. Reinhardt v. Bennett, 45 Mich.App. 18, 23, 205 N.W.2d 847 (1973), GCR 1963, 301.8.

This Court has held that M.C.L. § 600.5839(1); M.S.A. § 27A.5839(1), which limits action against licensed architects and professional engineers arising from a defective or unsafe condition of an improvement to real property to six years after the time of use, acceptance, or occupancy, does not extend to building contractors. Oole v. Oosting, 82 Mich.App. 291, 296, 266 N.W.2d 795 (1978), lv. gtd. 403 Mich. 829 (1978). (In granting leave to appeal, the Supreme Court has limited its appeal to the constitutionality of the statute.) Therefore, the applicable statute of limitations for this action is M.C.L. § [101 MICHAPP 190] 600.5805(8); M.S.A. §...