McCune v. Muenich

• Decision Date: 15 October 1963
• Docket Number: No. 50868,50868
• Citation: 255 Iowa 755,124 N.W.2d 130
• Parties: Vera McCUNE, Appellee, v. Emery MUENICH, Hallett Construction Company, Bertram Byron Leonard, Appellants.
• Court: Iowa Supreme Court

Page 130

124 N.W.2d 130

255 Iowa 755

Vera McCUNE, Appellee, v. Emery MUENICH, Hallett Construction Company, Bertram Byron Leonard, Appellants.

No. 50868.

Supreme Court of Iowa.

Oct. 15, 1963.

Paul W. Deck, Sioux City, and Leonard & Branco, Holstein, for appellants.

Hutchison, Hurst & Duggan, Sioux City, for appellee.

MOORE, Justice.

On May 25, 1961, an intersection collision occurred between an automobile owned and driven by defendant, Bertram Byron Leonard, and a truck owned by defendant, Hallett Construction Company, and driven by its employee, defendant Emery Muenich. The truck, loaded with 14 tons of gravel, then left the highway, struck plaintiff's cement block locker plant, proceeded almost entirely through the building and caused considerable property damage and personal injury. Plaintiff's claim was tried to the court after all defendants waived a jury and admitted liability. They stipulated the trial court should hear and determine the measure of plaintiff's damages. The court found plaintiff was entitled to recover for damages to building $6774; to her personal property $1232; to customers' meat $340; to plaintiff's meat and food products $945; for her personal injury, pain, discomfort and medical expense $500; for loss of earnings and profit $900 and entered judgment for the total of $10,691. Defendants have appealed.

The sole question involved here is whether the award for damages to plaintiff's building is supported by substantial evidence.

I. This law action in which a jury was waived and trial was had to the court is not triable de novo on appeal. In accord with our uniform decisions and rule 334, Rules of Civil Procedure, 58 I.C.A., it is reviewed on errors assigned. The findings of fact by the trial court have the effect of a special verdict and are equivalent to the verdict of a jury. If supported by substantial evidence and justified as a matter of law, the judgment will not be disturbed on appeal. Our question is whether the trial court's finding is supported by substantial evidence, and we will not weigh the evidence or the credibility of the witnesses. Davis v. Knight, 239 Iowa 1338, 1340, 1341, 1352, 35 N.W.2d 23-25; Staley v. Fazel Bros. Co., 247 Iowa 644, 648, 75 N.W.2d 253, 255; Morf v. Washburn, 250 Iowa 759, 762, 94 N.W.2d 756, 758; Wunschel v. McKinney, 251 Iowa 881, 882, 103 N.W.2d 81, 82. See also rule 344(f)1. Further, the evidence will be construed in the light most favorable to the trial court's judgment. Staley v. Fazel, supra, and citations.

Plaintiff testified the building, erected in 1955, was a 30X30 foot steel reenforced cement block building in good repair just prior to the accident. It was divided into properly equipped rooms for cooling, sharp freeze, killing and cutting. On the east side was another building 8X10 ft. which housed three compressors three motors and cooling equipment. During the summer of 1960 plaintiff had installed a meat case with compressors and deep freeze at a cost of $750.

She testified the truck struck the building near the front door, took out the front steps, completely demolished the front of the structure and continued in and through the building until its front end reached a point about four feet outside the northeast corner of the building. The small building at the northeast corner of the plant, the three compressors, compressor units and motors were completely demolished. Part of the east wall was torn out. The remainder was cracked as were the west and south walls of the building. The roof was broken in the middle and shoved back eight or nine inches. All flashings were torn loose from the blocks. One partition in the sales room was completely torn out; another was broken by flying blocks. The walls and seals of both the sharp freeze and cooler room were broken open. About half of the load of gravel was dumped inside the plant.

As owner plaintiff expressed the opinion the reasonable value of the building was $11,000 immediately before and $500 after the accident. We need not set out her testimony regarding loss of meat kept for sale and other items of damage. They are not here in controversy.

Ray Carroll testified for plaintiff he had been employed by Haubrich Construction Company as an estimater 15 years and had been in the construction business 25 years; that it would cost $11,942.00 to put plaintiff's plant in the same condition it was in prior to the accident. He stated a new building with like equipment would cost approximately $20,000. On cross-examination he stated his estimate included new materials for partitions, the equipment was to be replaced with new equipment, he had not considered any depreciation on any equipment and that all equipment and wiring would run about $6,000.

The written estimate of Ericssons, Masonry Contractors, was offered by plaintiff and received without objection. It set the cost of repairing only the building at $3408. The estimate expressly excluded any electrical, plumbing, heating and cooling equipment.

A. C. Dohrmann, a graduate architect and experienced contractor, testified for defendants. Part of his testimony is:

'I have an opinion as to what it would cost to put the building back in its original state prior to the accident. It is as follows: Demolition structure, repairs and replacement, $2,979.61; freezers, mechanical equipment $1,526.00; resurface freezer walls, and I put into parenthesis 'before,' it was needed before the accident, was $640.59; new meat case and compressors $1628.00, making a total of $6,774.20. In this I have included $640.59 for resurfacing freezer walls which I felt was needed before the accident. In comparing Exhibit 25, the estimate prepared by Ericssons, Masonry Contractors, and the estimate made by myself, the Ericssons' estimate includes the cost of temporary repairs made to the building. My estimate had been made after the temporary repair work had already been done, and in my estimate we would be using that...