McCarthy v. J. P. Cullen & Son Corp.

• Decision Date: 29 June 1972
• Docket Number: No. 54828,54828
• Citation: 199 N.W.2d 362
• Court: Iowa Supreme Court
• Parties: Ronald J. McCARTHY and Dorothy J. McCarthy, Appellees, v. J. P. CULLEN & SON CORP., a Corporation and Durrant, Deininger, Dommer, Kramer& Gordon, a Partnership, Appellants.

Page 362

199 N.W.2d 362

Ronald J. McCARTHY and Dorothy J. McCarthy, Appellees, v. J. P. CULLEN & SON CORP., a Corporation and Durrant, Deininger, Dommer, Kramer& Gordon, a Partnership, Appellants.

No. 54828.

Supreme Court of Iowa.

June 29, 1972.

M. M. Cooney, Dubuque, for appellant, Durrant, Deininger, Dommer, Kramer & Gordon, a Partnership.

O'Connor, Thomas, Wright, Hammer & Bertsch, Dubuque, for appellant, J. P. Cullen & Son Corp., a Corporation.

Reynolds, Kenline, Roedell, Breitbach & McCarthy, Dubuque, for appellees.

LeGRAND, Justice.

This is the aftermath of a school construction project in Dubuque County. The work caused substantial water damage to plaintiffs' property, which they attribute to negligent and improper drainage of surface water from the building site. A suit against J. P. Cullen & Son Corp., hereafter called the contractor, and Durrant, Deininger, Dommer, Kramer & Gordon, a Partnership, hereafter called the architect, terminated in a verdict against both defendants for actual damages in the amount of $5500.00 and for punitive damages against the contractor alone in the amount of $15,000.00. Both defendants apepal, and we affirm.

The appeal also involves cross-petitions by which each defendant seeks indemnity from the other. Both were dismissed on motion at the conclusion of the evidence. We consider these matters separately after deciding the other issues raised.

We recite the important facts upon which plaintiffs' case rests. In doing so we give the evidence in its light most favorable to plaintiffs, since our principal task is to determine if there is competent evidence to support the jury's findings. Needless to say much of the evidence was in dispute.

In 1968, the Dubuque Community School District entered into a contract with defendant contractor for the construction of the Steven Hempstead Senior High School in Dubuque at a cost of approximately $3,300,000. The defendant architect was employed by the school district to draw plans and specifications and to perform the general duties of an architect.

Excavation, which started on May 1, 1968, was a major undertaking, requiring the removal of almost 20,000 truck loads of dirt. From the outset, the work on the school job resulted in drainage problems for the plaintiffs, whose residential property is located adjacent to the new school. On numerous occasions quantities of mud and debris washed down onto plaintiffs' property, damaging both the inside and outside of the house and lot. To complicate matters the season was an unusually wet one. Rains were both frequent and heavy.

We paraphrase plaintiffs' testimony concerning their problems and frustrations over a two-year period--problems which still remained unresolved at the time of trial.

Plaintiffs' residence is a split-foyer structure with an attached car-and-a-half garage. It has a living room, kitchen, bath, and three bedrooms upstairs. The lower level consists of a family room, bedroom, master bedroom, bath and utility area. Plaintiffs and their children, now numbering seven, have lived in the house since July, 1963.

Prior to the construction of the high school, plaintiffs had no drainage problems, even when there were heavy rainfalls. Following the start of work, they frequently had standing water on their property. The first time was May 25, 1968. Mud and water came down the embankment at the back of the house. On May 29th there was a similar incident. On June 10th water and mud washed into the lower level of the house from two sides. On this occasion Mr. Gordon, one of the architects, came to the house. He observed the water on the floor and the mopping operation that was going on. On that occasion firemen were called to pump mud and water out of the house. Within the next day or two, a diversion ditch was dug in an apparent effort to stop the rush of water to plaintiffs' property.

There was a more serious mud slide on July 23, 1968. At that time the whole back yard and both side yards were completely under water. The firemen were again called to pump out the lower level of the house. After the water was pumped out, there were seven or eight inches of clay throughout the lower level. It was scooped up and carried out in bushel baskets. Clothing, luggage, and appliances--virtually everything on that level--were badly damaged or completely ruined. Furniture and paneling were water marked and warped. According to plaintiffs, on that occasion the water came down the hill so fast 'it actually had whitecaps.'

Mrs. McCarthy phoned the architect or the contractor. She isn't sure which. The next afternoon two or three workmen came down and entered the premises and made 'somewhat of an effort' to wipe the walls for awhile. That was the only time either of the defendants made any effort to help plaintiffs.

Plaintiffs had water problems the rest of the summer and fall of 1968 and again during the summer months of 1969. Water frequently entered the basement; and when that happened mud and debris washed down onto the property in generaous quantities. In 1969 there would be water on the basement floor 'just about every rainfall of any size.' None of the debris deposited on plaintiffs' property from May 1968 to the time of trial had been removed; neither defendant displayed any interest in rehabilitating plaintiffs' property, inside or out.

Plaintiffs have not been able to live in the lower level of their home since July 23, 1968. They are now occupying a bedroom which had previously been used by two of their daughters, who have moved in with the other girls. This means there are five girls in one bedroom and two boys in the other. This remained true at the time of trial.

Plaintiffs notified both the contractor and the architect without results. Several calls to the superintendent of schools followed. This brought a representative of the school board and one from the architect's office to the McCarthy house. They assured Mrs. McCarthy 'something would be done about it.' But nothing was, even though other complaints, both oral and written, followed. Other calls to the contractor, both at its home office in Janesville, Wisconsin, and Dubuque, were unavailing.

According to plaintiffs, they have had no help from anyone except for a few hours after the July 23 deluge. Perhpas Mrs McCarthy stated their plight best when she testified:

'You just couldn't imagine how awful that was. We took mud out by the bucketfuls. I just dragged it out. Everything was a mess. We just didn't believe that this would happen. * * * We have not received any help from the architect or contractor (since July 23, 1968) in either removing debris from our home or any other help. They have not come around at all. * * * Since July 23, 1968, having water on our property was almost like getting up in the morning. It happened all the time. When it rained we would get water. * * * From the period of July 1968 until (just before the trial started) when they came up to my house I had no knowledge that the architect or contractor was concerned with us.'

The record shows there were workmen in the area during all the time and that the mud and debris accumulating in plaintiffs' yard were plainly visible. Plaintiffs' testimony and the photographs admitted as exhibits establish defendant contractor must have been aware of conditions. In fact no attempt to deny this was made. Although indefinite as to time and number, there is some evidence plaintiffs' lawyer made frequent attempts to enlist defendants' help in resolving the problem. He too, was unsuccessful. In retrospect it appears each defendant pointed to the other as the one responsible and did little or nothing to remedy the trouble. In the meantime the waters came--and plaintiffs carried out mud 'by the bucket.'

I. We consider first the appeal by the defendant contractor. Eight assignments of error are urged as grounds for reversal. They raise the following issues:

(1) Error in refusing to give a requested instruction on the duty of defendant architect;

(2) Error in Instruction 15 dealing with the obligations of the contractor; and

(3) Errors involved in the submission and award of punitive damages.

II. The defendant contractor asked the court for an instruction telling the jury the architect had the duty of furnishing the contractor with plans and specifications for the protection of the plaintiffs' adjoining property during the period of construction. The request was refused and timely objection was made.

We believe the trial court properly refused to give this instruction. The architect's duty is fully covered by the instructions given. Instruction 17 told the jury it could find the architect negligent if the evidence established a failure 'to provide designs and plans for the protection of plaintiffs' property from surface water, mud, and debris, which reasonably could be expected to flow from the property of the Dubuque Community School District' or lack of due care in 'designing and plaining for the protection of plaintiffs' property from surface waters, mud, and debris which could reasonably be expected to flow from the property of Dubuque Community School District.'

Furthermore Instruction 18 imposed upon the architect the duty of designing and preparing plans and specifications, including those dealing with site development and grading, which would not result in the improper collection and discharge of surface waters upon plaintiffs' adjacent property.

These instructions state in substance what the contractor wanted from his requested instruction. The architect's contention was that it was obliged to provide plans to insure proper drainage only upon completion of the project, not during construction. The instructions as given contain no such limitation. It is clear the architect's duty to furnish plans for this purpose applies while the work was being done. We see nothing in the requested instruction which is not included in those given. When...