Bushnell v. Sillitoe
| Citation | 550 P.2d 1284 |
| Decision Date | 02 June 1976 |
| Docket Number | No. 14055,14055 |
| Parties | Van L. BUSHNELL and Allison S. Bushnell, his wife, Plaintiffs and Respondents, v. S. Delroy SILLITOE et al., Defendants and Appellant. |
| Court | Utah Supreme Court |
Michael W. Park, Cedar City, for James C. Sandberg, dba Sandberg engineers.
Tex R. Olsen, Richfield, for D. Land Title Co.
Christian Ronnow, Cedar City, for plaintiffs-respondents.
On appeal is the judgment of the district court awarding $6,000 to D. Land Title Company against James C. Sandberg, dba Sandberg Engineers. We affirm.
Plaintiffs, the Bushnells, brought an action against the Sillitoes alleging an encroachment upon their land. Bushnells joined D. Land, which had constructed the home and sold it to Sillitoes, and Sandberg Engineers. Sandberg was responsible for surveying the property. Bushnells allege that Sillitoes were trespassing on their tract; and that the survey was done in a negligent manner, by D. Land and Sandberg. Damages, and an order to remove the encroachment were prayed.
D. Land cross-claimed against Sandberg, alleging it had employed Sandberg to survey and stake the boundaries of the tract, and incorporated in the pleadings the engineer's certificate of survey. A further allegation, in the cross-claim, was that D. Land had relied solely on the engineer's services, and had constructed the home in compliance with the survey and the boundaries staked. D. Land prayed judgment against Sandberg for any and all damages awarded to Bushnell.
Subsequently, all parties entered into a stipulation, which was incorporated in the judgment, whereby Bushnells' action was dismissed with prejudice; upon the payment by Sillitoes and D. Land the sum of $3,000 each to Bushnells. Upon receipt of the $6,000 Bushnells were to deliver a warranty deed to Sillitoes for 15.8 feet of their tract. The judgment specifically reserved the determination of liability alleged in the cross-complaint. A trial to the court produced a judgment, which is here on appeal.
The court found that immediately prior to the construction of the home, D. Land employed the services of Sandberg to survey and stake the perimeter of the tract; that Sandberg negligently located the east line of the property at a point 25 feet east of the true line; as a result of this error, the home improvements were staked in such a way as to produce an encroachment of 9 feet 4 inches into the Bushnell tract; that D. Land reasonably relied upon the location of the stakes; that Bushnells' claim was settled for $6,000, which was reasonable compensation for their damages; and this sum limits the liability of Sandberg to D. Land.
Sandberg's appeal is predicated on the theory the judgment on the cross-complaint produces contributions among joint tort-feasors; that prior to the enactment of 78--27--39, U.C.A. in 1973, there was no right to such contribution. 1 Thus, according to Sandberg, since the alleged negligence in surveying the property occurred in 1969, 78--27--39 is not applicable. 2
In Augustus v. Bean, 56 Cal.2d 270, 14 Cal.Rptr. 641, 363 P.2d 873 (1961), the court observed that the statutory system for contribution did not concern the relationship of tort-feasors to the one injured, but dealt with the relationship of tort-feasors to each other; when, after entry of judgment, one of them discharged the common liability. The time which is significant is when the judgment is entered and payment made to the injured party, not the date of the tort. Since a contribution statute, if applied where an accident antedates its enactment, does not retroactively increase the liability existing at the time of injury; but merely provides a method of limiting liability of each of the tort-feasors to his prorated share of the judgment the statute may not be deemed to have impaired a vested right. Therefore, in an action under a statute providing for contribution the date of the original injury is not important.
The principal defect in the joint tort-feasor theory here is that the defendants were not joint or concurrent tort-feasors. Sandberg owed no duty to the adjoining landowners, the Bushnells. Sandberg's duty arose out of a contract to survey the premises, and its express representation on the certificate that the plat was correctly described, by a survey made under its direction.
The general principle is set forth in 35 A.L.R.3d 504, 507, Sec. 3:
It is clear that in the practice of his profession, a surveyor may be found liable in damages resulting from his mistake or misrepresentation in the survey of realty, where he does not perform his duties with a reasonable degree of care and skill.
Where contractual relations never existed between the plaintiff and the surveyor the question has arisen as to the applicability of the general rule that no cause of action in tort can arise from the breach of a duty existing by virtue of contract unless privity of contract existed between the defendant and the person injured. While the rule has sometimes been applied so as to relieve a surveyor from liability, it has also been held that the lack of direct contractual relationship between the parties is not a defense in a tort action.
A situation in which recovery was allowed, without a direct contractual relationship is found in Rozny v. Marnul. 3 The court held a surveyor liable on the theory of tortious misrepresentation for an inaccurate survey, although there was a lack of direct contractual relationship between the parties. The plaintiff there was the vendee of the person for whom the survey was made. The opinion states the ruling is not one fraught with an overwhelming potential of liability, because the class of persons who might foreseeably use the plat is limited to those who might deal with the property as purchasers or lenders.
In the instant matter, Bushnells are not within the class of persons for whose guidance the information was supplied by Sandberg. 4
Thus, Sandberg could not be held liable to Bushnells. By the same token, since Sandberg was found by the court to have located the east line of the property in a negligent manner, while employed by D. Land to survey the property for the purpose of constructing a home, Sandberg was liable to D. Land.
This court has never ruled as to whether there must be privity of contract between a surveyor and a party who sustains damage, because of a surveyor's negligent misrepresentation. It is likely, for this reason, the record shows D. Land contracted to indemnify its grantees, Sillitoes ($3,000), for their loss; and D. Land proceeded above in its cross-complaint. 5
Because this action is not one for contribution, the claim that the judgment should be limited to $1,500 is without merit.
I dissent for the reasons that the facts of the case are not fully set forth in the main opinion and the correct law is not applied to the facts as stated. I state them as I think they are:
The Bushnells brought an action against the defendants for damages and for removal of a house which encroached upon their land. D. Land Company had built the house and sold it to McCune who in turn sold it to the Sillitoes. Sandberg had surveyed the lot for D. Land Company before the house was built. D. Land Company cross-claimed against Sandberg claiming that the survey was negligently made.
The prayer of the cross-claim of D. Land Company is as follows:
Wherefore, in the event the Court determines that the Plaintiffs herein have sustained some damage or loss as alleged in their Complaint, the Defendant prays that the total relief granted to the Plaintiffs be granted against the Defendant, James C. Sandberg, dba Sandberg Engineers, or in the alternative, and in the event relief is grantel against this Cross-Complainant, that this Cross-Complainant be awarded an indemnifying judgment against the Cross-Defendant herein for all of said relief, together with costs incurred herein and such other relief as the Court shall seem equitable. (Emphasis added.)
By this counterclaim D. Land asked the court to determine that if Bushnells were entitled to recover anything that it be solely against D. Land Company (which is really not a part of the counterclaim at all) and that if the court should hold D. Land Company for any part of the damages sustained by the Bushnells that it (D. Land Company) might be made whole by having an indemnifying judgment against Sandberg, the surveyor, for the amount of the judgment against itself. That is all D. Land Company prayed for--simply to be made whole.
During the course of the trial the plaintiffs and defendants settled their differences by entering into the following stipulation:
Come now VAN L. BUSHNELL and ALLISON B. BUSHNELL, his wife, by and through their attorney, CHRISTIAN RONNOW of RONNOW AND BISHOP; Defe...
To continue reading
Request your trial
-
Fullmer v. Wohlfeiler & Beck
...and Co., 529 P.2d 806, 808 (Utah 1974). The Utah Supreme Court later referred to the ruling in the Milliner case in Bushnell v. Sillitoe, 550 P.2d 1284, 1286 n. 5 (Utah 1976). The court there stated that the Milliner opinion confines the liability in such circumstances to those who "could r......
-
Coniaris v. Vail Associates, Inc.
...Curry County, 26 Or.App. 645, 554 P.2d 601 (1976); Brunyer v. Salt Lake County, Utah, 551 P.2d 521 (1976); But see Bushnell v. Sillitoe, Utah, 550 P.2d 1284, 1285 n. 2 (1976). We are persuaded, however, that the cases from the jurisdictions comprising the minority are the better reasoned. L......
-
Boyer v. Boyer
...317. ¶ 16 To support her assertion that Green owed Plaintiff a duty, Plaintiff relies on the Utah Supreme Court case Bushnell v. Sillitoe, 550 P.2d 1284 (Utah 1976). Her reliance is misplaced. The Utah Supreme Court recognized the general rule of no duty to adjoining landowners not contract......