Lembke Plumbing and Heating v. Hayutin

• Decision Date: 13 November 1961
• Docket Number: No. 19643,19643
• Citation: 148 Colo. 334,366 P.2d 673
• Parties: LEMBKE PLUMBING AND HEATING, a partnership; Henry H. Lembke, Sr., and Henry H. Lembke, Jr., as partners in Lembke Plumbing and Heating, Plaintiffs In Error, v. Irving J. HAYUTIN and Sima B. Hayutin, Defendants in Error.
• Court: Colorado Supreme Court

Page 673

366 P.2d 673

148 Colo. 334

LEMBKE PLUMBING AND HEATING, a partnership; Henry H. Lembke Sr., and Henry H. Lembke, Jr., as partners in Lembke Plumbing and Heating, Plaintiffs In Error, v. Irving J. HAYUTIN and Sima B. Hayutin, Defendants in Error.

No. 19643.

Supreme Court of Colorado, In Department.

Nov. 13, 1961.

Rehearing Denied Dec. 18, 1961.

Wagner & Wyers, Denver, for plaintiffs in error.

Fred M. Winner, William G. Berge, Warren O. Martin, Denver, for defendants in error.

FRANTZ, Justice.

Although inaccurate in insignificant detail, as affecting this suit, we shall treat Hayutins as acting together in our consideration of this case. Their complaint was in two counts based on separate acts of negligence. On February 26, 1953 Lembke undertook by written contract to install plumbing in Hayutins' new house. As shown later, the contract is unimportant in the issues here except to show the employment.

Failure to protect a pipe in a concrete wall is the negligence involved in the first claim; a broken tube resulting from the act of Lembke's employee in the course of a repair job performed some eighteen months after the original contract is the negligence referred to in the second claim. Negligence is alleged generally in both counts but the proof showed the acts of negligence as just described.

Lembke denied negligence and further set up various affirmative defenses, including Hayutin's negligence as the sole proximate cause of the damage, and, in a separate defense, their contributory negligence. Lembke also seeks to invoke the contract and its terms as an absolute defense whatever the form of the action.

The evidence covered a wide range and the trial court made elaborate findings. However, the following brief statement of the facts is sufficient for this review.

Both claims center about a pit adjacent to and southerly from the building. It had eight inch concrete walls. The water supply is a well from which the water is piped to and through the westerly wall of the pit and delivered to a water heater and pressure tank contained in the pit. From these appliances the water is piped through the easterly wall to the residence. By means of one vertical and two horizontal sections of pipe, connected by elbows, the water is conducted from the pit to a tee (T) fitting or joint beneath the floor. This fitting is about six feet, following the pipeline, from the easterly pit wall, and some inches from the westerly wall of the house. The stem of the tee projects vertically through the floor and into the interior.

The pipe entry into the west wall was protected by a casing or bushing larger than the pipe, to permit minor movement of the well without damage to the pipe. No such protection was provided on the easterly side; the pipe was firmly embedded in the cement. Sound and acceptable plumbing practice required protection on the easterly side in the same manner as that provided on the westerly.

The easterly pit wall subsided, throwing the pipe off horizontal and angling downward. The movement and consequent stress followed the pipeline to the tee and severed the connection, and water escaped and by percolation saturated the clay formation beneath the house. The clay, about nine feet deep, is of such character that it expands and heaves when saturated. As a result of this expansion the house was dislocated and extensively damaged. The floor cracks commenced immediately above the tee and radiated therefrom to various parts of the house. This pattern was significant as it indicated the cause and the place of the escapement of the water.

Concerning the second claim, in March of 1955 the heaters were giving trouble and the Hayutins employed Lembke to make repairs. On heater was within the pit and Lembke's employee removed the cover, entered the pit and stepped upon, crushed and flattened a copper gauge tube therein. The circumstances indicated that the damage occurred in that manner. No one had previously entered the pit, and within a few days after such entry water commenced to and did accumulate in the pit to a depth of several feet. The pit was drained and the damaged gauge tube discovered.

The written contract was on a printed form supplied by Lembke. According to its terms, it '* * * lawfully expires one year from date.' Lembke urges that this provides a one year statute of limitations. A contract, whether 'expiring' lawfully or unlawfully, does not provide a substitute statute of limitations for acts of negligence in the absence of an express provision therefor. The contract here imposes no duty on Lembke to exercise due care and caution and the necessary degree of skill involved in a plumbing installation, provisions implied in every such contract. But, as shown by the authorities later cited, the duty upon Lembke was even more fundamental, to-wit: the common-law obligation to exercise due care, caution and skill resting on all persons and in all undertakings when the rights of others are involved. Although this duty may not be contractual, the law allows no vacuum and imposes the duty. Dean v. Hershowitz, 119 Conn. 398, 177 A. 262.

Lembke argues that the contract and its terms are the 'exclusive remedy.' It provides in substance that 'defects' shall be remedies by Lembke after written notice from Hayutin. The defect, the failure to protect the exist pipe, was made known to Lembke as soon as discovered; in fact, he (or his employee) discovered it after tunneling under the foundation. He demanded no writing. It was discoverable to Hayutin only after its disastrous consequences were known. Damage to the tube was in the course of a repair job unconnected with the 1953 contract and it no doubt augumented the saturation and was at least a contributing proximate cause.

The contract at various points speaks of 'acceptance' by Hayutin. If applicable, he did nothing that would operate as a waiver or as an estoppel to assert his claim for violation by Lembke of his common law duty.

It has the usual provision that it contains all the understandings, agreements and warranties express or implied intended to be applicable. This in context has reference to contractual undertakings only and is ineffective to abrogate of modify the common law duty.

Various alleged errors in the trial are set forth in the briefs. Clevenger, a soil expert and an employee or member of an engineering firm employed by Lembke's insurer, inspected the premises, drilled test holes, conducted laboratory tests and made a written report of his findings. A copy of this report was supplied to counsel for Hayutin long before the trial. Clevenger was called by Hayutin's counsel for cross-examination under Rule 43(b), R.C.P.Colo. Objection was made and overruled that he was within none of the categories mentioned in the rule and cross-examination was not permissible. This ruling is urged as error. If so, it was not prejudicial, as the circumstances surrounding its use during the trial show.

The cross-examination consisted of quotations from the report with an inquiry whether the recitals were accurate, to which Clevenger replied in the affirmative, explaining his answers in a few instances. He was called as Lembke's witness and his testimony was in line with his answers on the earlier cross-examination. The cross-examination might have been deferred to follow Clevenger's direct examination and would then have been free of the objection. Under the circumstances shown, the error, if any, was harmless.

The report itself was received in evidence primarily to aid the court in understanding and weighing Clevenger's testimony on technical problems. One paragraph was deleted as based on hearsay. It was useful for the purpose mentioned and was substantiated by Clevenger's...