Larsen v. Minneapolis Gas Co.

• Citation: 282 Minn. 135,163 N.W.2d 755
• Decision Date: 13 December 1968
• Docket Number: 40790,Nos. 40645,s. 40645
• Parties: Erling LARSEN, individually, Sandra Larsen and Steven Larsen, a minor, by Erling Larsen, his father and natural guardian, Respondents, v. MINNEAPOLIS GAS COMPANY, Defendant and Third-Party Plaintiff, Appellant, BARBAROSSA AND SONS INC., Defendant and Third-Party Defendant, Respondent, L. Eugene Delaney and John J. Delaney, individually and as a partnership dba Edina Excavating Company, Defendants, Respondents.
• Court: Supreme Court of Minnesota (US)

Page 755

163 N.W.2d 755

282 Minn. 135

Erling LARSEN, individually, Sandra Larsen and Steven Larsen, a minor, by Erling Larsen, his father and natural guardian, Respondents, v. MINNEAPOLIS GAS COMPANY, Defendant and Third-Party Plaintiff, Appellant BARBAROSSA AND SONS INC., Defendant and Third-Party Defendant, Respondent L. Eugene Delaney and John J. Delaney, individually and as a partnership dba Edina Excavating Company Defendants, Respondents.

Nos. 40645, 40790.

Supreme Court of Minnesota.

Dec. 13, 1968.

Syllabus by the Court

1. Where a general contractor has no opportunity to observe or correct the negligence of its subcontractor in striking a gas main while attempting to excavate around 2. Where there is a conflict in the testimony as to the effect of the failure of the general contractor to compact an excavation with a vibratory roller as required under its contract, we must sustain the finding of the jury that such failure, although negligence, was not a proximate cause of the accident so long as the evidence viewed in the light most favorable to that finding will support it.

it, the liability of the general contractor for damages caused by that negligence is in the nature of vicarious liability. Thill v. Modern Erecting Co., 272 Minn. 217, 136 N.W.2d 677, distinguished.

3. Where the evidence sustains the finding of the jury that the general contractor's negligence in failing to use a vibratory roller to compact the soil after an excavation has been refilled was not a proximate cause of the accident and the general contractor is not equally liable with its subcontractor for that subcontractor's negligence, then unless there is some other ground on which the jury could have found the general contractor negligent, it must be concluded that the general contractor's liability is only vicarious and that the jury's finding was based on the trial court's instruction imputing the negligence of the subcontractor to the general contractor as a matter of law. No other ground for the jury's finding exists in this case.

4. Under the decisions of this court the right of one defendant to indemnity from another depends upon the existence of a relationship between the two whereby the negligent act of the indemnitor is responsible for the liability of the indemnitee.

5. Where the negligence of a subcontractor combines with the negligence of another defendant to cause plaintiffs' damage and there is no causal connection between the negligent acts of the other defendant and the liability of the general contractor to plaintiffs, the general contractor is not entitled to indemnity from that defendant.

6. Where there are multiple defendants and one of them is liable to plaintiffs solely on the basis of negligence imputed to it by virtue of its relationship with one of the other defendants, the one guilty of the negligent act and the one to whom it is imputed are to be treated as one party for purposes of determining the share of the verdict allocable to each. Thus in the present case the general contractor and the subcontractor are to be treated as one party and the verdict split between them and the other negligent defendant one-half each, so that the other defendant has a right of contribution against both the general contractor and the subcontractor up to one-half of the total liability to the plaintiffs.

7. On the basis of the facts set out in the opinion, the jury did not exceed the bounds of justice in awarding $125,000 to Erling Larsen and $150,000 to Steven Larsen for the damages sustained by each.

Meagher, Geer, Markham & Anderson, and O. C. Adamson, II, and Wm. D. Elaskamp, Alonzo B. Seran, Minneapolis, for appellant.

Hvass, Weisman, King & Allen, Minneapolis, for Larsen.

Robb, Robb & Van Eps, Minneapolis, for Barbarossa and Sons, Inc.

Carroll, Cronan, Roth & Austin, Minneapolis, for Delaney.

OPINION

FRANK T. GALLAGHER, Justice.

In this action for damages caused by an explosion resulting from the rupture of a gas main, defendant and third-party plaintiff, Minneapolis Gas Company, appeals from an order of the District Court of Hennepin County denying its motion for a new trial on all the issues or, in the alternative for a new trial on the issue of damages alone, and from the judgment entered.

In 1952, appellant (hereafter Gas Company) installed a gas main on Third Avenue South in Bloomington, approximately 4 feet below the surface, using new 4-inch cast iron pipe. In 1960 the city of Bloomington contracted with defendant Barbarossa and Sons, Inc. (Barbarossa) to install sewer and water facilities in an area including Third Avenue South. The contract placed full responsibility on Barbarossa for meeting plans and specifications, compacting with a vibratory roller over all excavations, and seeing that all utility facilities were protected and repaired. ¹ As was the custom in the industry, Barbarossa subcontracted for a good part of the work. Defendant Edina Excavating Company (Edina), a partnership composed of L. Eugene and John J. Delaney, was awarded the job of installing sewer stubs running from the main sewer, which Barbarossa laid down the center of the street, to the property lines of the houses. In order to install the stubs it was necessary to uncover and dig under the previously installed gas main.

The usual procedure was for Barbarossa to work one or two days in advance of Edina, laying the main sewer at a depth of 10 or 11 feet down the center of the street. Barbarossa filled its trench before Edina began excavating. When Edina arrived, it would dig a sloping trench 12 feet wide at the top and about 30 inches wide at the bottom to a depth of about 9 feet with a truck-mounted 'backhoe,' starting at the property line and working out to the sewer main. After the stub was installed the dirt would be compacted with a hand tamper up to about 1 foot over the stub. The remaining dirt would be put back into the trench with a front-end loader weighing about 15,000 pounds, which would cause some further compaction as it was driven in and over the excavation. In the course of digging the trenches, Edina had, on at least two occasions, struck the gas main while trying to dig around it. When this happened, Edina called the Gas Company, which came out immediately and repaired the damage. The cost of the repairs was paid by Edina.

On April 22, 1960, Edina installed a sewer stub in front of plaintiffs' home at 8601 Third Avenue South. The usual procedure was followed. Neither the Gas Company nor Barbarossa was notified that the gas main had been damaged. John Delaney who had been operating the backhoe on that occasion, testified that the main had not been struck or damaged in any way during the installation.

On November 20, 1963, there was an explosion in plaintiffs' house while Sandra Larsen and her two-year-old son, Steven, were inside. Both were badly burned. Sandra, Erling Larsen, her husband, and Steven, by his father, each brought action against the Gas Company, joining Barbarossa and Edina as defendants. Each of the defendants cross-claimed for contribution or indemnity.

In the course of the trial, testimony was introduced to the effect that the explosion was caused by gas which escaped through a break in the main just over the sewer stub; the main had gouge marks such as might be made by the tool steel of a backhoe shovel, linear cracks, and a split in the pipe. When the main was uncovered, there was a .09-foot slant in the pipe toward the split from both directions. Experts testified that the failure to compact the trench when the sewer stub was installed removed the support under the main so that, weakened by the gouge, it 'gave' under pressure from the dirt above.

The Bloomington-Barbarossa contract was introduced to show that Barbarossa had a duty to compact on the entire project with a vibratory roller; Barbarossa's supervisor on the project testified that this was not done. John Delaney stated that Edina did not expect Barbarossa to do any compacting within the trench itself; that Edina did not do any, and that no objection was made to Edina's installation procedure by Barbarossa, Bloomington, or the Gas Company, all of whom had observed it. There was substantial conflict in the expert testimony as to what effect vibratory-roller compaction at the surface would have had on the 6-foot area above the sewer stub and below the gas main. Other expert testimony was submitted to show that the pipe the Gas Company had installed in 1952 was defective and should have been rejected. One expert testified that it could not have withstood the tests which the manufacturer claimed had been run on it prior to shipment to the Gas Company.

On the issue of damages, medical testimony was submitted about the injuries sustained by Sandra and Steven, along with numerous photographs and hospital records. Erling and Sandra testified on their own behalves. Although the evidence offered comprises but a small part of a voluminous record, it presents a graphic description of the injuries they sustained. Sandra is badly scarred on the face, shoulders, and back; past and future hospitalization will total about 9 months and involve about 26 surgical procedures by a plastic surgeon; she is uncomfortable with anyone but close friends and no longer leaves the house without her husband or some other close relative; she is no longer able to water-ski or ice-skate, due to the effect of sun and cold on the scarred areas; and her ability to perform normal household and garden chores has been impaired.

Steven has extensive facial scarring which, although permanent, should improve as he grows older; he spent 55 days in the hospital; no skin grafting was done during that time and future plans indicate only minor cosmetic surgery on one ear and skin grafts on the right hand to restore presently limited motion; the scarred areas are affected by sun and cold. Testimony indicated that the sales field is closed to...