Garbis v. Apatoff

• Decision Date: 12 January 1949
• Docket Number: 51.
• Parties: GARBISv v. APATOFF et ux.
• Court: Maryland Court of Appeals

63 A.2d 307

192 Md. 12

GARBISv v. APATOFF et ux.

No. 51.

Court of Appeals of Maryland

January 12, 1949

Appeal from Superior Court of Baltimore City; Joseph Sherbow, Judge.

Action by Meyer Garbis trading as Globe Home Improvement Company against Norman L. Apatoff and Sylvia L. Apatoff his wife, for labor and materials furnished to make alterations in defendants' dwelling wherein defendants filed a counterclaim. From a judgment for the defendants on the counterclaim, plaintiff appeals.

Affirmed.

M Richard Moss, of Baltimore, for appellant.

Albert H. Frankel and Henry J. Frankel, both of Baltimore, for appellee.

Before MARBURY, C.J., and DELAPLAINE, COLLINS HENDERSON and MARKELL, JJ.

DELAPLAINE, Judge.

Meyer Garbis, a building contractor, trading as Globe Home Improvement Company, instituted this suit in the Superior Court of Baltimore City against Norman L. Apatoff and his wife to recover for labor and materials furnished under a written contract to make alterations to their dwelling at 2521 Liberty Heights Avenue.

Under the contract executed June 25, 1946, plaintiff agreed to complete the work on or before August 1 for $3,200. One of the principal defects of the house was a hump in the floor in the living room and the dining room. Plaintiff agreed to try to lower the posts under the dining room and to shorten the studding in the basement partition under the living room. In the specifications he commented: 'This should lower the floor to some extent, possibly level out to where floor belongs, but not completely.' Defendants made an advance payment of $200 upon the execution of the contract, and agreed to make further payments of $750 when the work was commenced, $750 when the work was half completed, $750 when the work was three-fourths completed, and $750 upon completion of the work.

Defendants however, refused to pay the final installment of $750 on the ground that plaintiff had not performed the contract properly and completely. On November 14, 1946, they wrote plaintiff a letter complaining that seven items in the specifications had not been performed and that the paint had peeled off the front porch. Shortly afterwards defendants noticed some cracks in the wall, and they complained to plaintiff, who went to the house with Louis De Cou, an assistant, to make an inspection. De Cou said that he was unable to assign any cause for the cracks other than settlement of the house or vibration of the street cars. Plaintiff accordingly took the position that he was in no way responsible for the damage. In March, 1947, defendants consulted another contractor, Larry Ginsberg, trading as Gaines Home Improvement Company, who gave an estimate that the cost of remedying the damage would be about $830. It was not until February, 1948, that Ginsberg undertook the work. After performing the work he rendered defendants a bill for $1,050.

Defendants filed a counterclaim against plaintiff to recover for damages alleged to have been caused by plaintiff's negligent workmanship. They based their counterclaim mainly on the way in which plaintiff tried to remove the hump in the first floor. They produced testimony to show that plaintiff had chopped out some of the joists, the only support for the first floor and the partition walls resting thereon; and that in the fall of 1946 the east wall of the living and dining rooms, having no support, began to crack. Eventually the cracks ran all along the wall from the front to the rear of the house. In some places they were two inches wide. Plaintiff disputed that the damage was caused by his negligence. He advanced the theory that the house, which was built more than 25 years ago, stands on defective ground, and that settling of the walls had caused them to crack. The trial judge decided that the cutting of the joists had caused the damage, and had made it necessary to hire another contractor. The judge considered $1,050 as a reasonable amount for the cost of remedying the damage, and from that sum he deducted $594, representing the final installment due under the contract less credits allowed defendants for work undone, and thereupon entered judgment in favor of defendants for $456. From that judgment plaintiff took this appeal.

Plaintiff's primary contention is that the evidence was insufficient to prove that his work was the proximate cause of the damage alleged. He urged that the defective gound was causing the house to settle, and this condition was an independent factor which was the superseding cause of the damage. The general rule is firmly established that damages cannot be recovered for a negligent act unless it is the direct and continuing cause of the injury without the intervention of any independent factor. Holler v. Lowery, 175 Md. 149, 200 A. 353; Parsons v. Chesapeake & Potomac Telephone Co., 181 Md. 502, 505, 30 A.2d 788. The difficulty often comes in the application of the rule. However, as we said in Mullan v. Hacker, 187 Md. 261, 49 A.2d 640, the trial court in an action for damages should not indulge in subtleties as to causation that might defeat the ends of justice. When two or more independent causes concur in producing an effect, and it is impossible to determine judicially which was the controlling and efficient cause, or whether the event would have happened at all without the concurrence of both, and a particular party is responsible for only the consequences of one of such causes, the plaintiff cannot recover. But a tortfeasor is not allowed to apportion his own wrong, and hence if injury occurs while his wrongful act is in operation, he cannot make the defense that there was a more immediate cause of the loss, if that cause was put into operation by his act; but, in order to be free from liability, he must show that the same loss would have happened if the negligent act had not been done.

We...