Cissel v. Western Plumbing and Heating, Inc.
| Decision Date | 04 June 1980 |
| Docket Number | No. 14865,14865 |
| Citation | 612 P.2d 206,37 St.Rep. 966,188 Mont. 149 |
| Parties | Gary CISSEL, Plaintiff and Appellant, v. WESTERN PLUMBING AND HEATING, INC., A Montana Corporation, Defendant and Respondent. |
| Court | Montana Supreme Court |
Lyman Bennett, III, Bozeman, for plaintiff and appellant.
Keefer, Roybal & Hanson, J. Dwaine Roybal (argued), Billings, for defendant and respondent.
Appellant Gary Cissel initiated this action by filing a complaint in the Sixth Judicial District, Park County, before the Honorable Jack D. Shanstrom. The complaint alleged the respondent, Western Plumbing and Heating, Inc. (herein Western), negligently installed a water closet valve in a home being constructed by him resulting in damage to the home which rendered it worthless. Western answered the complaint by asserting the damages complained of by Mr. Cissel were caused by negligence on his part.
The parties presented the case to a jury on the complaint and answer. The jury returned special interrogatories finding negligence on the part of both parties but finding only Mr. Cissel's negligence caused damages to the house. The jury returned a general verdict for defendant. The District Court entered judgment accordingly and this appeal followed.
Mr. Cissel and William Patenaude entered into a joint venture agreement to construct and sell a house in Livingston, Montana. Under the terms of the agreement Mr. Cissel was to provide the financing for the project and do the electrical work. Patenaude was to act as the general contractor. Construction of the house began in November 1976 and continued at a slow pace until March 1977. At that time Mr. Cissel terminated his agreement with Patenaude and hired John Sexton to complete construction of the home.
When Mr. Sexton began working on the house he discovered that one corner of the structure had settled approximately five-eighths of an inch. Sexton also ascertained that the house was moving in a side-to-side fashion. Sexton installed a cement "deadman" below the foundation of the house to correct these problems. Sexton stated that no further slippage or settling occurred in the foundation for about the next eight months while he completed construction of the structure.
Mr. Cissel contracted with Western to do the plumbing in the house. As of February 4, 1978, all the plumbing had been completed except for the installation of a toilet in a bathroom on the first floor of the house. Western had installed the pipe that supplied water to the toilet and sealed it off with a water closet valve.
On February 4, 1978, Mr. Cissel conducted a routine inspection of the house. He found that the water closet valve installed on the toilet pipe had blown off and that water was flowing through the inside of the house. Mr. Cissel presented evidence at trial that the water flow from the pipe washed away a large portion of the fill dirt around the foundation of the house. He also presented testimony that the erosion of the fill dirt caused the house to settle approximately five inches which in turn caused cracks in the footings and foundation of the house, cracks in the stone veneer installed on the outside of the house, separation of the house's interior walls, buckling of sheet rock inside the house, and eventually the buckling of the floor in the house. These damages rendered the house unsaleable and worthless according to Mr. Cissel.
Western presented evidence along two lines to refute Cissel's theory that the leaking pipe caused the damage to the house. First, Western introduced testimony that both the fill and foundation systems used by Cissel in constructing the house were inadequate to support the structure. Second, Western introduced evidence that water run-off from a snow melt, rather than water leaking from the toilet pipe, caused a substantial amount of the erosion of the fill dirt.
Mr. Cissel's attorney put William Patenaude on the stand at trial. On direct examination Mr. Patenaude testified as to the procedure followed in setting the foundation of the house and placing the fill dirt around the house. On cross-examination Patenaude was allowed to testify as to an incident that occurred after the filing of this lawsuit. He related an incident before trial in which Mr. Cissel allegedly grabbed him, threw him to the ground and threatened "to blow his brains out" if he did not testify favorably to Cissel's case at trial.
Mr. Cissel raises the following issues on appeal:
1. Was there substantial evidence before the jury to support the finding of no causal connection between Western's negligent installation of the water closet valve and the damages sustained by Mr. Cissel?
2. Did the District Court err in admitting the testimony of William Patenaude concerning the assault Mr. Cissel made on him and the threats Cissel made to him?
Mr. Cissel frames the first issue raised on appeal in terms of substantial evidence to support the jury verdict. The standard for review of an issue presented in this fashion is well settled. The Court will not disturb the jury's verdict if the record contains substantial evidence to support the verdict. Dodds v. Gibson Products Company (1979), Mont. 593 P.2d 1022, 1026, 36 St.Rep. 348, 353; McGuire v. American Honda Co. (1977), 173 Mont. 171, 177, 566 P.2d 1124, 1127; Big Sky Livestock, Inc. v. Herzog (1976), 171 Mont. 409, 414, 558 P.2d 1107, 1109-1110. Further, the evidence must be viewed in the light most favorable to the prevailing party in the trial court on review. Herzog, 171 Mont. at 414, 558 P.2d at 1110.
Several witnesses presented testimony that there was no causal connection between Western's negligence and the damage to the house. The evidence indicated two causes of the settling of the house and resulting damages other than the leaking pipe. First, Western introduced evidence that improper design of the house and improper compaction of the fill dirt placed under the house caused the settling. Two expert witnesses testified to that effect. Kent Brewer, a structural engineer, testified that the foundation system of the house was inadequate; that the pylons that supported the front of the house were not set in bedrock; and that the fill under the house was improper. Brewer did state that water flow would accelerate settling in a loose fill situation, but that the settling would occur eventually even without the water flow. On cross-examination Brewer said the house would have settled in zero to five years without any water flow.
Walter Jones also testified. Jones is a civil engineer with a specialty in soil mechanics. He stated that the back of the house has been placed on bedrock and had not settled. He further observed that the front of the house had not been placed on bedrock and had settled. Jones explained that his company had taken soil samples and run tests to determine the compaction of the fill dirt under the house. Jones stated the tests showed the fill dirt was not compacted very well and that the house could be expected to settle about six inches under the existing fill conditions. Based on this data, Jones concluded the main reason for the settling of the house was improper compaction of the fill dirt under the house. Jones further stated that he observed settling over the entire front of the house. He said the amount of the settling correlated to the depth of fill under a particular part of the house and that there was not an unusual difference in the settling where the erosion of the fill dirt had occurred.
In addition to the expert testimony, Mr. Cissel himself testified he was concerned with the amount of fill used in constructing the house. He stated he had the cement pillars installed in the front of the house to add support because of his concern. Mr. Cissel also stated he was generally concerned with the quality of the work Mr. Patenaude had done in the first phases of construction of the house, that the tamper used to compact the fill dirt placed under the house was a small one generally used for ditch or trench projects rather than a large fill area like the house project, and that no tests were done on the soil compaction during the construction of the house.
Bill Patenaude also testified concerning the fill conditions at the house. Patenaude did state that the fill dirt placed under the house was compacted with a tamper. He testified, however, that he had no expertise in preparing fill or constructing a foundation. Patenaude further said that no testing of the fill was done during the construction of the house and that he was concerned about the condition of the fill and the foundation. Patenaude stated his concern stemmed from the amount of fill used and the fact that the front of the house was placed on fill dirt while the back of the house was sitting on a rock ledge.
The second theory advanced by Western as a cause for the house's settling was erosion of the fill dirt due to run-off from snow melt. Myron DesChene testified concerning this theory. Mr. DesChene is an insurance man whom Cissel called to the house on the day he discovered the leaking pipe. DesChene testified the day Mr. Cissel called him to inspect the damage to the house was a very warm one for February as it was chinooking. He stated the snow from the top of the hill behind the house was melting. DesChene said water from the snow melt was running down the hillside behind the house, disappearing under the house, and that an amount of water about equal to the amount disappearing behind the house was coming out from under the house in the front corner of the house where the fill dirt eroded. Although DesChene recognized that he was not an expert in the area of water flow, he gave the following testimony on cross-examination:
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