Connelly v. Sherwood
| Decision Date | 27 April 1978 |
| Docket Number | No. 12109,12109 |
| Citation | 268 N.W.2d 140 |
| Parties | Arnold B. CONNELLY and Elaine Connelly, Plaintiffs and Respondents, v. Douglas L. SHERWOOD and Sharon R. Sherwood, Defendants, Third-party Plaintiffs and Respondents. FITZGERALD CONCRETE, INC., Defendant, Third-party Plaintiff and Appellant, v. CONCRETE MATERIALS COMPANY, Third-party Defendant and Respondent. |
| Court | South Dakota Supreme Court |
Robert C. Heege of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiffs and respondents.
James H. Baker, Sioux Falls, for defendants, third-party plaintiffs and respondents.
Steve Jorgensen of Willy, Pruitt, Matthews & Jorgensen, Sioux Falls, for defendant, third-party plaintiff and appellant.
John E. Burke, Sioux Falls, for third-party defendant and respondent.
This is an appeal from the trial court's dismissal of the third-party complaint of appellant Fitzgerald Concrete, Inc. against Concrete Materials Company. We affirm the trial court's decision.
Plaintiffs Arnold B. Connelly and Elaine Connelly (Connellys) purchased land from defendants Douglas Sherwood and Sharon Sherwood (Sherwoods) upon which the Sherwoods were to build a new home. Sherwoods subcontracted the construction of a concrete driveway to Fitzgerald Concrete, Inc. (Fitzgerald) on or about October 1, 1973. Fitzgerald purchased the concrete materials from the third-party defendant Concrete Materials Company (Concrete Materials). The driveway was installed by Fitzgerald in the fall of 1973. Connellys moved into their new home in June of 1974. In the spring of 1975, Connellys noticed that the top layer of their driveway was disintegrating and washing away.
Connellys served a summons and complaint upon Sherwoods and Fitzgerald on July 22, 1975. On July 31, 1975, Fitzgerald filed a third-party complaint against Concrete Materials. Later, the Sherwoods also filed a cross complaint against Concrete Materials.
Trial to the court of this case was held on October 6, 1976. During the course of the trial, Concrete Materials moved for dismissal of the third-party complaint. The motion was granted. Judgment in the sum of $750 was entered against the Sherwoods and Fitzgerald on November 4, 1976. The court also ordered that Sherwoods were entitled to indemnity from Fitzgerald.
Fitzgerald appealed from the trial court's decision, claiming: (1) error in the dismissal of the third-party complaint against Concrete Materials; (2) error in the trial court's refusal to enter a finding that Fitzgerald's installation of the driveway was proper; and (3) lack of evidence sufficient to warrant a judgment against Fitzgerald.
Fitzgerald claims that because the trial court found that one of the causes of the concrete breaking up was a defect in the concrete used in the driveway installation, the manufacturer Concrete Materials should not have been dismissed from the lawsuit.
However, neither the Sherwoods nor Fitzgerald in their capacity as third-party plaintiffs make any kind of a claim that the material provided by Concrete Materials was defective in any manner. Gary Fitzgerald, an officer, director and part owner of Fitzgerald Concrete, Inc., testified that he did not feel that anything was wrong with the concrete as it was delivered to them by Concrete Materials. Douglas Sherwood testified that of his own knowledge nothing was wrong with the concrete that was supplied by Concrete Materials.
It is settled law in South Dakota that a party to a lawsuit cannot claim the benefit of a version of relevant facts more favorable to his own contentions than he has given in his own testimony. Drier v Perfection, Inc., 1977, S.D., 259 N.W.2d 496, 508. The facts, as testified to by Fitzgerald, indicate that there was nothing wrong with the concrete provided by Concrete Materials. Therefore, Fitzgerald has no legal grounds for recovering against Concrete Materials. The trial court's decision to dismiss Concrete Materials is correct.
Secondly, Fitzgerald claims that inasmuch as such a finding was made by the trial...
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...show Crozier acted in conscious disregard of his constitutional rights. His claim cannot transcend his own testimony. Connelly v. Sherwood, 268 N.W.2d 140, 141 (S.D.1978). Horne's proof simply fails to rise to the level of a constitutional violation. Cf. Cottrell v. Caldwell, 85 F.3d 1480 (......
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...benefit of a version of relevant facts more favorable to his own contentions than he has given in his own testimony." Connelly v. Sherwood, 268 N.W.2d 140, 141 (S.D.1978). In this case, Mills is held to its testimony that the planners and architects for City foresaw the building finished fo......
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