Casper Lodge No. 22, I.O.O.F. v. Corbridge

• Decision Date: 09 August 1955
• Docket Number: No. 2657,2657
• Citation: 74 Wyo. 244,286 P.2d 1047
• Parties: CASPER LODGE NO. 22, I. O. O. F., of Casper, Wyoming, a Wyoming Corporation, Plaintiff and Respondent, v. W. J. CORBRIDGE, Defendant and Cross-Petitioner, and Appellant.
• Court: Wyoming Supreme Court

Page 1047

286 P.2d 1047

74 Wyo. 244

CASPER LODGE NO. 22, I. O. O. F., of Casper, Wyoming, a Wyoming Corporation, Plaintiff and Respondent, v. W. J. CORBRIDGE, Defendant and Cross-Petitioner, and Appellant.

No. 2657.

Supreme Court of Wyoming.

Aug. 9, 1955.

William H. Brown, Jr., and George M. Apostolos, Casper, for appellant.

Marvin L. Bishop, Casper, for respondent.

HARNSBERGER, Justice.

Appellant is the owner of a brick building which had been constructed in three sections, each section being built at a different time. The first section was a one-story structure facing west, fronting on the street, approximately 50 feet in length and 33 1/2 feet in width. The second section joined the rear of the first section. It also was a single-story structure, approximately 40 feet in length and 33 1/2 feet in width, but beneath it there was a basement. The third or rear section joined the second section at its south rear and was 50 feet in length but only 16 feet in width. This last section was a two-story building and it also had a basement. The foundation walls on the south side of the building, as finally completed, thus formed a continuous concrete wall extending 140 feet from street to alley, but the depth of the foundation varied due to there being a basement under the last two sections.

The appellant learned that respondent was about to erect a new lodge building upon lots which adjoined appellant's building to the south, and having in mind that he might build additional stories to his own building, he entered into a written agreement with respondent, the relevant substance of which expressed respondent's recognition of its obligation to protect appellant's building from any damage that might result from erection of the new lodge building. The agreement also noted the desire of appellant to have the footings and foundation wall beneath the entire south side of his building enlarged and strengthened in order to provide adequate support for higher stories to the building. In consequence, it was provided that respondent undertake and perform the enlargement and strengthening of the south foundation walls of appellant's building, using what was referred to as the 'alternate pit system' in the underpinning operation necessarily involved in providing the desired additional foundation. For this service the appellant agreed to pay respondent the sum of $2,880. The respondent agreed to use all reasonable care and prudent means to avoid damage to appellant's building in the course of its building and construction operation, and the respondent's liability or responsibility for any damage to appellant's building or improvements resulting from the excavation or removal of support from under the appellant's building, was expressly acknowledged.

Following completion of the work, respondent billed appellant for the $2,880 which he had agreed to pay, and when the appellant failed to remit, respondent brought this action to recover the amount. Appellant's answer admitted this indebtedness, but by cross-petition alleged respondent had breached its agreement by leaving the south wall of appellant's building without proper support during the underpinning operations; that this caused his building to settle; caused cracks in its walls and floors which required the expenditure of $2,360 for temporary repairs of the damage, and that it would require an additional $19,076 to make complete permanent repairs of the damage done. The appellant also asked a further recovery of $3,500 for damage caused to the roof of his building by the respondent's contractors and their employees having dropped hot rivets and throwing heavy tools, plaster and mortar thereon.

Pursuant to an order therefor, the appellant then filed a bill of particulars, itemizing the $2,360 which he claimed to have spent for the temporary repairs. These items included a charge of $932.05 listed as the cost of installing an accoustical tile ceiling in the south front section of appellant's building occupied by an insurance company, and a charge of $232 as the cost of a new floor covering in the same portion of the building.

The respondent denied the allegations of the cross-petition and the case was tried to the court which, after finding for the plaintiff-respondent on its $2,880 claim, found for the defendant-appellant on certain items of the damage claimed by his cross-petition, the total of which was the sum of $2,481.37. The court then rendered a judgment in favor of the plaintiff-respondent and against the defendant-appellant for the difference sum of $398.63. The defendant has appealed from that portion of the judgment, which awarded him only the sum of $2,481.37. The respondent suggests this is an appeal from a judgment favorable to appellant, but it is plain that the judgment disallows certain items of damage claimed by appellant and fails to award damages in the amount prayed by his cross-petition, which is, of course, an unfavorable judgment to the appellant from his standpoint.

In arriving at the judgment, the court deducted from the $2,360 shown upon the bill of particulars, the item of $932.05 listed for the accoustical tile ceiling, and also deducted $116 as one-half the cost of new floor covering which was listed as costing $232. The court then added $19.42 as the reasonable cost of necessary ceiling plastering, had the accoustical tile ceiling not been installed. The court also added $800 as the reasonable cost of removing the old and installing a new cement floor in the south portion of the front section of the building occupied by the insurance company; added $50 as the reasonable cost of repairing a crack in the floor of the north portion of the front sections of the building occupied by a stationery store and added $300 as the reasonable cost of leveling and repairing the cement floor in the basement of the building. By brief, as well as in argument, both parties dwelt at length upon the question of whether or not appellant's building had been damaged by respondent's operations. The point is moot here because the award of damages to appellant carries with it a finding that appellant's building was so damaged, and the respondent has not appealed from that finding.

For purposes of this case, we may accept appellant's contention that the contract made respondent an indemnitor and liable for any and all damage to appellant's building, whether caused by underpinning operations or by other construction work prosecuted by the respondent in the erection of its new building. It makes little difference whether the damage occurred through breach of contract or through negligence. The measure of damage in either case is the same.

The nature and extent of damage was a matter for factual determination and the amount of that damage, if any, measured in money, was also a matter of fact to be established in the usual and accepted legal manner. Our concern, therefore, is only with appellant's disagreement with the court's finding of fact respecting the nature, extent and value of the damage suffered. We will adhere to the oft repeated rule of this court, and look only to undisputed evidence and evidence most favorable to the successful party, giving to it all reasonable inferences, to ascertain if there is any substantial evidence to support the court's finding and judgment.

The testimony and evidence in behalf of appellant pictured the damage as having required the expenditure of $2,360 for 'temporary' repairs and as requiring an estimated $14,568 worth of 'permanent' repairs, plus another $3,000 to pay the expense of removing, storing and reinstalling stock, furniture and fixtures while the 'permanent' repair was being made.

The items in the bill of particulars which were awarded appellant for the repairs already made, were--Roof $369.72, Door $11.58, Water Line $83.02, Walls and Ceiling $714.63, Window $5.50, and Waterspout $11.50.

The remaining items in the bill of particulars were $932.05, the cost of the new accoustical tile ceiling installed by the appellant which was disallowed in its entirety, and $232, the cost of the new asphalt tile covering which was laid in the south front room, one-half of which was disallowed.

The breakdown of other items claimed to be necessary to make 'permanent repairs' may be summarized as follows: $1,440 to replace 1,440 square feet of basement floor; $800 to replace floor in the south front room; $1,948 to install 3,680 square feet of celotex tile for the entire first floor; $6,263 to replace damaged brick work; $176 to repair the store front; $1,186 to cover 2,880 square feet of floor with asphalt tile; $414 to patch 2,346 square feet of plaster; $465 for roof repair; $15 to repair gutter and downspout; $12 to repair rear door; $1,144 for painting; $176 to rehang ceiling fixtures; and $3,000 as expense of removing, storing and reinstalling stock, furniture and fixtures.

The court having allowed appellant the full $800 asked to replace the floor in the south front room of the building, this item is, of course, eliminated from consideration.

There was no conflict in the evidence but that the linoleum floor covering was rather badly worn--was 'worn out'. It follows that the court's allowance of one-half the cost of a new asphalt floor covering is considered generous.

Appellant points out that although he had invited respondent's officers, members of the lodge, the architect and the contractors to inspect the building before the underpinning work was commenced, they did not to his knowledge take advantage of the offer. He apparently reasons therefrom that respondent and its employees were without the information necessary to enable them to make reliable or comparative appraisal of the extent or degree of the damage for which respondent should be held liable. However, at least one of respondent's witnesses testified that prior to the underpinning operation he had inspected the building with the exception of...