Royal Indem. Co. v. Schneider
| Decision Date | 07 September 1972 |
| Docket Number | Nos. 25714,25715,s. 25714 |
| Citation | 485 S.W.2d 452 |
| Parties | ROYAL INDEMNITY COMPANY, a corporation, Respondent, v. Earl SCHNEIDER et al., Appellants. |
| Court | Missouri Court of Appeals |
Charles B. Adams, Kirksville, for appellant Schneider.
William Y. Frick, Frick & Mayberry, Kirksville, for appellant Fulkerson.
Tom B. Brown, Brown & Phillips, Edina, for respondent.
The parties will be referred to herein as they were below.
Defendants William Fulkerson and Frances Fulkerson, husband and wife, were the owners of a vacant lot in the city of Kirksville, Missouri. This lot was north of and contiguous to property owned by Joseph Burdman and Esther Burdman, husband and wife, upon which was located a two story brick building, hereinafter referred to as the 'Burdman building'.
This building was occupied by a gas utility company, Solar Gas, Inc., as tenant and the original plaintiff in this action. On the eve of trial, however, the present plaintiff, Royal Indemnity Company, was substituted as plaintiff upon the basis that it, as insurer, was the assignee of the total claim of Solar Gas, Inc., against the defendants.
The defendants Earl Schneider and Annabel Schneider were husband and wife, and Earl Schneider was in the contracting and construction business in Kirksville. So far as this record now shows, he was the sole owner and proprietor of the business, and Mrs. Schneider had no business connection with it as a partner or otherwise.
In the latter part of 1965 (probably December), Earl Schneider entered into a written contract (wherein he is designated as Andrew E. Schneider) with the defendants Fulkerson to construct a one story brick and concrete building, with full basement, on the Fulkerson property, according to plans and specifications approved by Fulkerson and the Goodyear Tire and Rubber Company, Fulkerson's prospective tenant. This was a simple construction contract (Plaintiff's Exhibit No. 1) to which were attached the plans and specifications (Plaintiff's Exhibits Nos. 2, 3 and 4). Mrs. Schneider was not a party to this contract, and so far as this record shows, had no connection with the actual construction work thereunder.
The project was to commence not later than March 1, 1966, and was to be completed within 120 days. According to the plans, Schneider was given the option of building the south basement wall of the new building on the property line and flush with the north wall of the Burdman building of standard construction, or placing the south wall 30 inches within the property line of the Fulkerson property, and thus that distance away from the north wall of the Burdman building. This optional wall was to be of heavier construction. This latter wall was referred to throughout the record as the 'optional wall'.
There was no evidence as to the date of original construction of the Burdman building, but it was an old structure and had apparently enjoyed no major repairs or improvements for 30 years.
Before commencing construction on the Goodyear building, the defendant, Earl Schneider, visually inspected the north wall of the Burdman building. This inspection disclosed that the wall was badly deteriorated, had settled, and was uneven; there were verticle cracks; there was no mortar between the bricks in many spots; and the bonding ties were broken. He also examined the lower floor inside the Burdman building and found it to be concrete, 'patched and repatched', and not level but sloping toward the north (toward the Fulkerson property). He also examined the foundation and footings of the Burdman building at one spot about 12 to 18 inches wide and to a depth of 1 or 2 feet. He found that the north brick wall of the Burdman building rested on a structure of flat rocks laid one on top of another to the depth of 20 to 24 inches, and with no cement or mortar between. He made no soil test or other tests as to the Burdman building support, other than as above described.
Defendant Earl Schneider decided to build the optional basement wall to the Goodyear building because he 'didn't like the looks of the (Burdman) wall'. He had the property line between the Fulkerson and Burdman properties surveyed by a Mr. Lear, who put a surveyor's mark at the east and west end of the line--30 inches north of the property line.
Schneider used a back hoe with a 16 inch shovel and excavated a trench for the south foundation wall of the Fulkerson (Goodyear) building. He built this wall in sections of about 13 feet, using reinforced steel rods; he had ready-mixed concrete ready to pour into each section; he built concrete pilasters at the juncture of each section and at places supported the earth south of the wall (still on Fulkerson property) with beaver board, to prevent excessive crumbling. He did encounter crumbling of the earth along the excavation and also encountered pockets of water, which were dipped or pumped out. All of these extra procedures added to his cost.
After the other three basement walls were built and connected with the optional wall, Schneider dug out the dirt between the Burdman building and the optional wall to a depth of about 20 inches and filled that area with concrete.
During this procedure, there were heavy rains in Kirksville and a bad fire in the vicinity, which resulted in the use of a large volume of water by the fire department, which water was drained toward the Burdman building.
Schneider completed the south basement wall of the Fulkerson (Goodyear) building on April 5, 1966, and on June 8, 1966, the Burdman building collapsed and was a total loss.
Sometime in March, 1966, the defendants Schneider and Fulkerson had entered into a written agreement with Joseph and Esther Burdman (Plaintiff's Exhibit No. 22) which is generally referred to in the record as the 'indemnity agreement'. Parts of this agreement were blocked out and therefore not submitted to the jury. The parts in evidence and pertinent here, after describing the parties and the fact that Earl Schneider had entered into the construction contract with the Fulkersons for the Goodyear building, provide: 'First parties (Schneider-Fulkerson) agree that they will take any steps deemed necessary by them to protect Second Parties' building from damage during construction and after the completion thereof,' and 'that they will proceed with the necessary work in constructing said basement with dispatch and that they will complete that portion of the work adjacent to Second Parties building and not permit Second Parties building or the grounds supporting the same to remain exposed to loss or damage for any unreasonable length of time.' No consideration for this agreement was stated. This agreement was attached to plaintiff's petition as an exhibit and incorporated by reference. The record is strangely silent as to the circumstances surrounding the execution of this agreement. Defendant Schneider remembers talking to the Burdmans, but does not think Fulkerson was with him (T. 183). There is no dispute, however, that the agreement was executed.
After the collapse of the Burdman building and the removal of the resulting debris, it was found that the building had rested on a cinder fill to the depth of 5 or 6 feet, through which ran a number of open flowing drains and pipes. Following the collapse, it was also ascertained that the Schneider optional wall was intact.
Plaintiff offered the testimony of one Baggerman, a consulting engineer, who testified that he had made an inspection of the property in June, 1966. He stated that the distance between the Schneider optional wall and the north wall of the Burdman building was 18 1/2 inches, whereas, the plans provided for 30 inches; that he made probe tests with a steel rod in the area under the north wall of the Burdman building and that he could push the rod to a depth of 5 feet with the pressure of one hand; and that the concrete slab of the floor of the Burdman building had separated 9 1/2 inches to the north, and the north wall of the Burdman building had dropped 11 1/4 inches.
Baggerman testified that his professional opinion was that the Burdman building had collapsed because the 'cone of support' or earth under the north wall of the Burdman building had been cut and disturbed by the construction of the optional wall, and that the wall could have and should have been constructed so that this cone of support would not be cut, or other support, such as, sheet piling, beside the Burdman building should have been substituted for the natural cone of support.
Baggerman's qualifications as an expert consulting engineer do not seem to have been challenged.
This suit was originally filed by Solar Gas, Inc. as plaintiff and it sought $13,475.44 in damages for relocation expense, loss of merchandise inventory and appliances, loss of office equipment, furniture and supplies, expense incurred investigating occurrence, and damage and cost of miscellaneous supplies and services. The Burdmans were originally joined as parties defendant, but the suit was dismissed as to them, with prejudice, before trial. Their testimony was not offered by any party, either in person or by deposition.
The trial resulted in a jury verdict in favor of the defendants and against the plaintiff, and thereafter, the court below sustained plaintiff's motion for a new trial because of error in instructions
'in that, plaintiff instructed on two theories, (one) under the agreement with one Burdman (5) and (two) the negligence of defendant Schneider alone (7) or as agent of defendant Fulkerson (9); defendants' converse instructions 6, 8 and 10 should each have included appropriate 'tails', so as to instruct the jury they could find for the plaintiff on the agreement theory and against on the negligence or agency, etc. or vice versa, etc.'
The instructions involved are as follows:
Your verdict must be for the plaintiff if you believe: First, defendants Earl Schneider,...
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