Jones v. Boeing Co.
| Decision Date | 20 September 1967 |
| Docket Number | No. 8389,8389 |
| Citation | 153 N.W.2d 897 |
| Parties | Mike JONES Plaintiff and Respondent, v. The BOEING COMPANY, a Delaware Corporation, Defendant, Respondent, and Third-Party Plaintiff, and Kirkham, Michael & Associates, a North Dakota Corporation, Appellant and Third-Party Defendant. Civ. |
| Court | North Dakota Supreme Court |
Syllabus by the Court
1. A demand for a trial anew in the notice of appeal to the Supreme Court is not sufficient. Such a demand must be included in the statement of the case. Sec. 28--27--32, N.D.C.C.
2. A party on appeal may raise only such issues as were before the trial court.
3. The admissibility of testimony of an expert witness rests largely in the discretion of the trial court, and it is not error to admit the testimony of an experienced supervisor of construction as to the accelerated flow of surface waters after the topography of a tract of land had been changed.
4. The exclusion of evidence as not material or as not of probative value commensurate with the time which would be required for its use as evidence, either because too remote, or because the evidence in question is deemed to be too uncertain, or too conjectural, is a matter largely within the discretion of the court.
5. The casting of surface waters from one's own land upon the land of another under circumstances where the resulting damage was foreseen or foreseeable, is tortious and liability results if the interference with the flow of surface waters is found to be unreasonable under the 'reasonable use' rule. The issue of reasonableness or unreasonableness is a question of fact to be determined by a consideration of all the relevant circumstances.
6. An architect-engineer who not only planned and designed a trailer park but also supervised construction of said development, who changed the direction of surface waters so that flooding resulted, and who did not take adequate steps to prevent such flooding after being warned of the danger by the plaintiff, did not exercise ordinary care and his interference with the flow of surface waters constituted an unreasonable use.
7. Where the third-party defendant entered into a contract with the third-party plaintiff by which terms the former agreed to defend, protect and save harmless the latter from and against all claims, suits, actions, liability, loss, damage and expense arising from any negligent act or negligent omission of the third-party defendant or any subcontractor under the agreement, the lower court did not err in holding the third-party defendant liable for the judgment which the original plaintiff had secured against the third-party plaintiff.
Conmy, Conmy & Feste, Fargo, for appellant and third-party defendant.
Ella Van Berkom, Minot, for plaintiff and respondent.
Palda, Palda, Peterson & Anderson, Minot, for defendant, respondent, and third-party plaintiff.
Plaintiff commenced an action for damages caused by the drainage of surface waters to personal and real property owned by him, which property was situated in the city of Parshall, Mountrail County, North Dakota. The defendant interposed an answer and also instituted a third-party-plaintiff proceeding against the third-party defendant, Kirkham, Michael & Associates. The trial was held before the Honorable Eugene A. Burdick, district judge, and the court granted judgment to the plaintiff for the damages sustained to his property against the defendant and third-party plaintiff, The Boeing Company, a Delaware corporation, and judgment against the third-party defendant, Kirkham, Michael & Associates, a North Dakota corporation, in favor of the third-party plaintiff. The defendant and third-party plaintiff did not appeal from the judgment, but Kirkham, Michael & Associates, the third-party defendant, has appealed from the judgment which was entered against it in favor of the third-party plaintiff. The appellant has demanded a trial do novo and, in addition thereto, has set forth certain assignments of error and specifications of insufficiency of the evidence.
Prior to the commencement of this action the plaintiff secured the services of a competent surveyor to establish the grade level and level for the house which plaintiff desired to build. Construction of his house was completed in the year 1961. The plaintiff and his wife occupied the main floor of this structure and the basement was leased as two separate, finished rental units. The house faced in an easterly direction and there was an outside entrance to the apartment on the north side of the house, with two separate doors to the apartments at the bottom of the stairway. A retaining wall of concrete blocks protected the stairway.
The defendant, The Boeing Company, during the summer of 1961, acquired certain property directly to the north and across the street from the plaintiff's property, for the purpose of constructing a trailer court for its employees. The area of the trailer court exceeded 13 acres and prior to such leasing was virgin land, vacant and unoccupied. There was a thoroughfare designated as Fifth Avenue which separated the plaintiff's property from the Boeing property, which ran in an easterly and westerly direction. There was also a street adjacent to the east side of the plaintiff's property, known as Second Street, the direction of which was north and south.
The Boeing Company entered into a contract with the third-party defendant, Kirkham, Michael & Associates, which contract was reduced to writing and is one of the exhibits in this case. The third-party defendant, pursuant to the terms and provisions of this contract, agreed, among other things, that it would be responsible for all acts of negligence and damage growing out of and from the construction of the mobile home sites in Parshall, North Dakota, together with sites in other locations in the State of North Dakota which are not involved in this action. The relevant provision of said agreement is as follows:
'Clause 14. Responsibility for Negligence.
Architect-Engineer shall defend, protect and save harmless Boeing from and against all claims, suits, actions, liability, loss, damage and expense arising from any negligent act or negligent omission of Architect-Engineer or any subcontractor (first or lower-tier) under this agreement or any of their respective agents or employees in connection with the performance of this agreement.'
The third-party defendant, according to the terms of the above-mentioned contract, further agreed to design, secure bids, and perform all engineering services, together with and including complete supervision and inspection required with reference to the construction of this housing unit site. A contracting firm was awarded the bid for the construction of the site, pursuant to the bids advertised, considered, and recommended by the third-party defendant.
The plaintiff secured a judgment as a result of the damages sustained from the water which was drained from the trailer court area and directed onto, upon, and across the property of the plaintiff, flooding his basement, which flooding damaged his property, both real and personal. The appellant, as heretofore indicated, has demanded a trial de novo of all of the issues in the Supreme Court and this demand is contained in its notice of appeal. However, the demand for trial de novo was not contained in the certificate settling the statement of the case as required by Section 28--27--32 of the North Dakota Century Code. This court has held that a request and demand for trial de novo that appears only in the notice of appeal is not sufficient. Anderson v. Blixt (N.D.), 72 N.W.2d 799; Retterath v. Retterath, 76 N.D. 583, 38 N.W.2d 409.
A further review of the judgment roll indicates that the third-party defendant did not in its answer to the third-party complaint interpose any defense against the action of the plaintiff even though such a defense may have been interposed pursuant to the North Dakota Rules of Civil Procedure. The pertinent portion of Rule 14(a) of the North Dakota Rules of Civil Procedure is as follows:
'* * * The third-party defendant may assert against the plaintiff any defenses which the third-party plaintiff has to the plaintiff's claim. * * *'
A party on appeal may raise only such issues as were before the trial court. Adams v. Bartel (N.D.), 129 N.W.2d 755. In addition thereto, the notice of appeal, while the same was served upon the attorney for the plaintiff and also on the attorneys for the defendant and third-party plaintiff, is actually only an appeal from the judgment of the defendant and third-party plaintiff against the third-party defendant. Therefore our review of this record is further limited in scope to those defenses which were raised by the third-party defendant against the third-party plaintiff in the trial of said action in the district court.
The appellant's attorneys, by their own conduct in this case, further buttress this position. We quote from the transcript:
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