Stockgrowers' Bank of Wheatland v. Gray

• Decision Date: 05 February 1916
• Docket Number: 790,786
• Citation: 24 Wyo. 18,154 P. 593
• Parties: STOCKGROWERS' BANK OF WHEATLAND v. GRAY
• Court: Wyoming Supreme Court

154 P. 593

24 Wyo. 18

STOCKGROWERS' BANK OF WHEATLAND v. GRAY

Nos. 786, 790

Supreme Court of Wyoming

February 5, 1916

ERROR to the District Court, Laramie County; HON. WILLIAM C MENTZER, Judge.

Actions by Rachael E. Gray against the Stockgrowers' Bank of Wheatland. Proceedings in error to review a judgment for plaintiff and to review a denial of its petition after term to set aside the judgment and verdict and for new trial. The cases are considered and determined in the opinion in the order of their docketing number.

The material facts are set forth in the opinion.

Affirmed.

Marion A. Kline and Oscar O. Natwick, for plaintiff in error.

Charles Goodrich and Frank Windom were independent contractors for the construction of a bank building. The bank reserved no control over the means or manner of the performance of the contract, facts clearly established by the evidence. The evidence relating to conversations between plaintiff and D Miller, vice president of the bank, should have been excluded, it being shown that Miller had no authority from the bank to interfere with the work, or bind the bank with reference to the manner of its performance. Goodrich and Windom were experienced contractors and had the reputation of being prudent and skillful contractors. The excavation work was not inherently dangerous to adjoining property, if reasonable care was exercised in performing it. The fact that a contractor is negligent in his work creates no presumption that his employer was negligent in employing him. (Hawke v. Brown, 50 N.Y.S. 1032.) There was no issue made by the pleadings as to negligence in employing negligent contractors; there was no issue made as to the sufficiency of the plans and specifications to secure safe construction findings made thereon are not within the issues. (Crenshaw et al. v. Ullman, (Mo.) 20 S.W. 1077; Aston v. Nolan, 63 Cal. 274.) Goodrich and Windom were independent contractors as defined by law. (26 Cyc 1546-1548; Powell v. Construction Co., 88 Tenn. 692, 13 S.W. 691; Hampton v. Unterkircher, 97 Ia. 509, 66 N.W. 776; Good v. Johnson, 38 Colo. 440, 88 P. 439; 16 Am. & Eng. Ency. of Law, 2nd Ed., page 187; Moll on Independent Contractors, page 26.) Parties are bound by their pleadings, (Pardee v. Kuster, 15 Wyo. 368, 91 P. 836), and cannot sue upon one cause of action and recover on another. (Bender v. Bender, 14 Ore. 353, 12 P. 713; Lake St. Elevated Ry. Co. v. Shaw, 203 Ill. 39; 67 N.E. 374; Cincinnati &c Ry. Co. v. McClain, 148 Ind. 188, 44 N.E. 306; Shirk v. Mitchell, 137 Ind. 185, 36 N.E. 850; Hennessy v. Anstock, 19 Pa. S.Ct. 644; Reed v. Bott et al., (Mo.) 12 S.W. 347; Hasselmann v. Carroll, (Ind.) 26 N.E. 202; Lloyd v. Anderson (Ga.) 47 S.E. 208; Fox v. Hale &c Co., 108 Cal. 369, 41 P. 308.) Where due diligence is used in the selection of a competent contractor, the contractee is not liable for the contractor's negligence, (26 Cyc. 1553), even if the work be intrinsically dangerous. (19 Cyc. 9; Tibbetts v. Railroad Co. 62 Me. 437; Symons v. Road Directors (Md.) 65 A. 1067; Hall v. Railroad Co., 106 N.Y.S. 106; Kendall v. Johnson, 51 Wash. 477, 99 P. 310; Houghton v. Lumber Co. (Cal.) 93 P. 82; Laycock v. Parker, 79 N.W. 332; Korn v. Weir, 88 N.Y.S. 976; Myer v. Hobbs, 57 Ala. 175, 29 Am. Rep. 719; Boomer v. Wilbur, 176 Mass. 482, 57 N.E. 1004; McGrath v. City of St. Louis, (Mo.) 114 S.W. 617; Engle v. Eureka Club, 32 N.E. 1052; Harrison v. Kiser, 4 S.E. 320; Atlanta, &c. Railroad Co. v. Kimberly, 87 Ga. 161, 13 S.E. 277; Richmond v. Sitterding, 101 Va. 354.) The court should have directed a verdict for defendant for insufficiency of proof. (1 Chamberlayne on Evidence, Sec. 396; Jones on Evidence, Sec. 174; IV Wigmore on Evidence, Sec. 2494.) Evidence as to the conversation between Gray, Fails and Miller could not bind defendant and should have been excluded; Miller was not the agent of the bank. (21 Am. & Eng. Ency. of Law 852.) Plaintiff's walls were inherently weak and collapsed by reason of the removal of defendant's old building. The admission of the Artist letter was prejudicial error; a retention of control of the premises by the owner is not inconsistent with the existence of an independent contract for new construction. (Boomer v. Wilbur, 57 N.E. 1004, 176 Mass. 482; Louthan v. Hewes, 138 Cal. 116, 70 P. 1065; Bibbs Admr. v. Norfolk &c. R. R. Co. 87 Va. 711, 14 S.E. 163.) Defendant's showing of newly discovered evidence warranted the granting of a new trial. (29 Cyc. 895, 906; Illinois Central Railroad Co. v. McManus (Ky.) 67 S.W. 1000; Stackpole et al. v. Perkins, (Me.) 27 A. 160; Germinder v. Machinery Mutual Insurance Association of Waterloo, (Ia.) 94 N.W. 1108; Schnitzler v. Oriental Metal Bed Co., 93 N.Y.S. 1119; Holdridge et ux. v. Hamilton et ux., 37 Ga. 676; Gilman v. Nichols, 42 Vt. 313; Wilder v. Greenlee, 49 Ill. 253.) Defendant's petition for a new trial on grounds of misconduct on the part of the juror and of I. W. Gray was supported by sufficient evidence of reprehensible conduct to have warranted the court in granting a new trial. (Burke et al. v. McDonald et al. (Ida.) 29 P. 98; Scott v. Tubbs, 42 Colo. 221, 95 P. 540; Garvin v. Harrell, 27 Okla. 373, 113 P. 186; Ensign v. Harney, 15 Neb. 330, 18 N.W. 73; Harrington v. Hamm, (Mich.) 117 N.W. 62; Wright v. Eastlick, (Cal.) 58 P. 87; Stafford v. Oskaloosa, (Ia.) 11 N.W. 668; Harvester Co. v. Hodge, 6 Pa. Dist. R. 378; Cottle v. Cottle, 6 Me. 140; Doud v. Guthrie, 13 Ill.App. 653; McDaniels v. McDaniels, 40 Vt. 374.) The court erred in giving instruction No. 10; defendant was under no duty to excavate the cellar in sections. (Obert v. Dunn, 140 Mo. 476, 41 S.W. 903.) Plaintiff had actual knowledge of the proposed excavation and notice thereof was unnecessary. (Bohrer v. Dienhart Harness Co. (Ind.) 49 N.E. 299; Novotny v. Danforth, 9 S. Dak. 398; Ulrich v. Trust Co. 3 S. Dak. 44, 51 N.W. 1024; McGrath v. City of St. Louis (Mo.) 114 S.W. 618; Jones on Easements 610.) The court erred in instructing the jury that the plaintiff was bound by Miller's promise to protect plaintiff's wall. (Comp. Stats. 1910, Sec. 3751.) It was error to refuse defendant's requested instruction that defendant was under no obligation to prop or support plaintiff's wall. Gates v. Fulkerson, (Mo.) 107 S.W. 1033; Ashton v. Nolan, 63 Cal. 269; Covington v. Geyler, 93 Ky. 275; Serio v. Murphy, 99 Md. 545, 58 A. 435; Bohrer v. Dienhart Harness Co., 49 N.E. 299; Block v. Haseltine (Ind.) 29 N.E. 937; Lapp v. Guttenkunst, (Ky.) 44 S.W. 964; Carpenter v. Reliance Realty Co. (Mo.) 77 S.W. 1004.) If the bank through its officers had promised to support plaintiff's walls it would have been ultra vires and void. The case of Rowland v. Murphey, 66 Tex. 534, 1 S.W. 658, is clearly in point on the question of defendant's liability; the verdict and judgment are contrary to the evidence. (Schulze v. Shea, 86 P. 117; 3 Cyc. 352.)

Clark & Clark, for defendant in error.

The bill does not show that defendant excepted to the order overruling its motion for a new trial. An exception noted in the journal entry is insufficient. (Freeburgh v Lamoureux, 12 Wyo. 41; Davis v. Ogden, 17 Wyo. 207; Burns v. Railroad, 14 Wyo. 498; Perry v. Stephens, 139 S.W. 1180 (Mo.). The rule is set forth in Wilbrandt v. Laclede Gaslight Company, 135 Mo.App. 220, 115 S.W. 497. The exception is insufficient in form, even if properly presented. (8 Enc. P. & P. 167, 168; Gray v. Ellzroth, 10 Ind.App. 587, 37 N.E. 551.) The bill does not show that plaintiff requested a directed verdict, nor an exception taken to a denial thereof. (Painter v. Stahley, 15 Wyo. 510, 516; Keffler v. State, 12 Wyo. 49, 69; Koppala v. State, 15 Wyo. 398, 410.) The same is true of assignments numbered 3, 4, 5, 6, 7, 8 and 9. The 10th assignment is not discussed. Separate exceptions to the special findings of the jury were not preserved and a general exception is insufficient if any one be supported by evidence. (Evansville Ry. Co. v. State, 149 Ind. 279, 49 N.E. 2; Payette v. Willis, 23 Wash. 299, 63 P. 254; Robins v. Paulson, 30 Wash. 459, 70 P. 1113; Jordan v. Wagner, 107 Wis. 539, 83 N.W. 946.) The verdict is supported by the evidence and the law of the case; the sufficiency of the evidence was not challenged. A number of the court's instructions of which the defendant complains were not excepted to and are not before this court for review. (Schmidt v. Carpenter, 27 So. Dak. 412, 131 N.W. 723; Alexander v. Bilger, (Ia.) 89 N.W. 98; Peet v. Railroad, 88 Ia. 520, 55 N.W. 508; Smith v. Pearson, 44 Minn. 397, 46 N.W. 849.) There are many conditions under which the owner may be liable, even though there be an independent contract, e. g., If the work be inherently dangerous, and the meaning of the term "inherently dangerous" is defined by instruction No. 10, to which no exception was preserved, but which correctly stated the law. (Bonaparte v. Wiseman, 89 Md. 12, 44 L. R. A. 482; Southern R. Co. v. Morey, 47 O. St. 207; Davis v. Summerfield, 133 N.C. 325, 63 L. R. A. 492; Covington Bridge Co. v. Steinbrock, 61 O. St. 215, 76 A. S. R. 375; Wetherbee v. Partridge, 175 Mass. 185, 78 A. S. R. 486; Earl v. Reid, 21 Ont. L. Rep. 545, 18 Ann. Cas. 1; Berg v. Parsons, 156 N.Y. 109, 66 A. S. R. 542.) An issue as to the character of the work was made by the pleadings and properly so. (Chicago &c. Ry. Co. v. Martin, (Okla.) 141 P. 276.) The jury found the contractor's negligence in the conduct of the work; defendant was liable for failure to give plaintiff notice of its excavation and an opportunity to protect her wall, (Davis v. Summerfield, 133 N.C. 325, 63 L. R. A. 492), which liability could not be shifted to an independent contractor, nor evaded on the ground that plaintiff had knowledge of the proposed excavation. (Walker v. Strosnider, 67...