Casper Nat. Bank v. Jones

• Decision Date: 30 September 1958
• Docket Number: No. 2826,2826
• Citation: 329 P.2d 1077,79 Wyo. 38
• Parties: CASPER NATIONAL BANK, Appellant (Defendant below), and J. Jones, Contractor, Inc., and L. C. Anderson (Defendants below), v. Le Clercq JONES, d/b/a Personnel Specialists, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1077

329 P.2d 1077

79 Wyo. 38

CASPER NATIONAL BANK, Appellant (Defendant below), and J. Jones, Contractor, Inc., and L. C. Anderson (Defendants below), v. Le Clercq JONES, d/b/a Personnel Specialists, Appellee (Plaintiff below).

No. 2826.

Supreme Court of Wyoming.

Sept. 30, 1958.

Goppert & Fitzstephens, Cody, Marvin L. Bishop, Casper, for appellant.

Addison E. Winter, Casper, for appellee.

Before BLUME, C. J., and HARNSBERGER and PARKER, JJ.

Mr. Justice PARKER delivered the opinion of the court.

Plaintiff, Le Clercq Jones, brought suit against the Casper National Bank for damages resulting from the collapse of a party wall between the building occupied by plaintiff and property owned by the bank--joining defendants, J. Jones, Contractor, Inc., ¹ and L. C. Anderson, one of Jones' employees.

Prior to answer day, the court on plaintiff's motion dismissed without prejudice his actions against defendants, J. Jones, Contractor, Inc., and L. C. Anderson. ² Thereafter plaintiff filed an amended petition against the bank, alleging in some detail its negligence in performing inherently dangerous work which caused heavy vibrations and the consequent collapse of an insufficiently supported party wall, and asserting that the bank knew of the danger and negligently selected the contractor. The bank unsuccessfully applied for an order to reinstate J. Jones, Contractor, Inc., and L. C. Anderson as defendants and for leave to file a cross-petition against them. After a request for jury trial was withdrawn, the parties filed a stipulation of facts on the basis of which the court entered judgment against the bank for $1,500.

The stipulation delineated the ownership and occupancy of the respective properties; the arrangements of the bank to construct a building on its premises, using the previously existing party wall, without adding any bearing weight thereon; the bank's letting of a bid to Jones who was an experienced and competent contractor, and Jones' employment of Anderson; the lack of bracing or anchoring of the party wall; the negligence and carelessness of performance of work by Jones and his agents; the resultant collapse of the party wall with consequent damage to plaintiff of $2,812.50; plaintiff's 'Covenant Not to Sue' J. Jones, Contractor, Inc., and Anderson (consideration, $1,312.50); and plaintiff's damages of $1,500 over and above the payments theretofore made to him by J. Jones, Contractor, Inc., and Anderson.

Appellant urges that the judgment of the trial court was erroneous for three reasons: (1) the evidence and admissions do not sustain the general findings and judgment; (2) a covenant not to sue a tort-feasor who is primarily liable releases one secondarily liable and is a bar to recovery here; and (3) the contractor was a necessary party to a final determination of the controversy, and it was error to deny the request to reinstate J. Jones and Anderson as defendants. However, the alleged errors are so closely related that all must stand or fall depending upon the correctness of appellant's philosophy, i. e., the bank, if liable at all, was responsible only secondarily because of imputed negligence of the contractor Jones and his agents. If this premise be correct, it follows that the judgment was improper for all of the reasons stated. On the other hand, if this premise be incorrect, it would seem to follow that the judgment should stand. We, therefore, must determine the correctness of appellant's premise. In order to do this, we first review the general rule of a property owner's liability for a tort caused by an independent contractor and then decide whether such rule can apply under the circumstances disclosed by the stipulation and exhibits in this case. The appellant, urging that it is not liable for the torts of an independent contractor or the latter's servants, ³ applies the principle where damages occur to structures when an independent contractor makes excavation on adjoining land, quoting Annotation, 33 A.L.R.2d 111, 113, 114:

'Contrary to the rule governing land in its natural state, the rule is well recognized that the owner is not liable for damage to structures on adjoining land caused by excavation work performed by an independent contractor on the owner's land provided none of the recognized exceptions applies. * * *

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'[One such exception being] * * * where the excavation to be performed by the contractor is of such a nature as probably to lead to damage if no precautions are taken. * * *'

The exception thus cited is amplified at page 131 of the same annotation ⁴ wherein it is stated:

'It appears to be well settled that a person who employs an independent contractor to make an excavation on his own lot is liable in damages for any injury thereby caused to the building of an adjoining lot owner where such injury might reasonably have been anticipated as a probable consequence of the excavation. In other words, although an employer is not liable for the injury caused by the negligence of an independent contractor which is collateral to, and not reasonably to be expected from the excavation work contracted for, such employer is liable for the negligence of the independent contractor where, from the nature of the work, danger of such injury is readily foreseeable. * * *'

Among the cases which the annotation cites to support this statement, two are of especial interest to us as dealing with party-wall situations: Fowler v. Saks, 7 Mackey 570, 7 L.R.A. 649; Briggs v. Klosse, 5 Ind.App. 129, 31 N.E. 208, 51 Am.St.Rep. 238.

In the Fowler case, the court held that the obligation to make good all damages to an adjoining owner by interference with a party wall, whether it arises under building regulations or the common law, cannot be escaped by contracting to have the work done, and the fact that the damages were due to the negligence or unskillfulness of a contractor is no defense.

Similarly, in Briggs v. Klosse, supra, where plumbers dug a ditch in defendant's cellar and so caused the party wall to crack and settle, the court affirmed a holding of liability against the property owner, saying at 31 N.E. 211:

'* * * If it can be said that the workmen employed by the appellee were employed to dig the ditch, he must be held liable for the injury thereby occasioned, whether those from whose negligent performance of the work it resulted were his servants, or his contractors, or their servants. * * *'

Courts are not in complete agreement on the answer to the question, Is a landowner liable for injuries resulting from the use or construction of a party wall, irrespective of negligence? See 40 Am.Jur. Party Walls § 46; 69 C.J.S. Party Walls § 18c; Annotations, 23 A.L.R. 984, 1000; 1016, 1038; 1084, 1106. However, most courts have recognized that a party-wall agreement creates a special situation which presents equities and property rights differing from those applicable to other tort problems.

One of the earlier cases which has had some influence in the field is that of Hughes v. Percival, 8 App.Cas. 443 (1883), wherein it was held that a property owner who arranged with a builder to pull down a house and rebuild it had the duty to see that reasonable care and skill were exercised in the operations which involved the use of a party wall belonging to himself and adjoining property owner and said that the contractee could not rid himself of responsibility by delegating the performance to a third person.

The case of Mary Jane Stevens Co. v. First Nat. Bldg. Co., 89 Utah 456, 57 P.2d 1099, 1115-1117, presents an extended discussion of authorities dealing with the duties and obligations of one owner of a party wall to the adjoining owner for damages caused in repairing, demolishing, or rebuilding the wall and concludes with the following summation which we think to be a correct statement of the applicable principles:

'We think the rule which comports with justice is that he who removes a party wall or a wall in which his neighbor has the right of support for his own legitimate purposes, where such wall is sufficient to support the presently existing buildings, is not in such removal an insurer against injury to his neighbor or under absolute duty to avoid injury to the latter, but he must use the highest possible care to prevent and avoid such injury which may be caused as the natural and proximate result of his building operations. * * *'

See generally Bradbee v. Christ's Hospital, 4 M. & G. 714, 134 Eng.Rep. 294 (1842); Brooks v. Curtis, 50 N.Y. 639, 10 Am.Rep. 545; Carroll Blake Const. Co. v. Boyle, 140 Tenn. 166, 203 S.W. 945; Cartwright v. Adair, 27 Ind.App. 293, 61 N.E. 240; J. C. Penney Co. v. McCarthy, 93 Ind.App. 609, 176 N.E. 637; Murray v. Patterson, 18 Tenn.App. 30, 72 S.W.2d 558. See also the view presented in 2 Cooley on Torts, 4th ed., pp. 378, 379:

'* * * Each proprietor [of a party wall] owes to the other the duty to do nothing that shall weaken or endanger it, and though each may rightfully, when he finds it for his interest to do so, increase its height, sink the...