Stover v. Ed Miller & Sons, Inc.

• Decision Date: 31 July 1975
• Docket Number: No. 39888,39888
• Citation: 194 Neb. 422,231 N.W.2d 700
• Parties: Walter F. STOVER and Wiebe Construction Company, a corporation, Appellants, v. ED MILLER & SONS, INC., a Nebraska Corporation, Appellee.
• Court: Nebraska Supreme Court

Page 700

231 N.W.2d 700

194 Neb. 422

Walter F. STOVER and Wiebe Construction Company, a corporation, Appellants, v. ED MILLER & SONS, INC., a Nebraska Corporation, Appellee.

No. 39888.

Supreme Court of Nebraska.

July 31, 1975.

Syllabus by the Court

1. Generally a construction contractor is not liable for injuries or damage to a third person with whom he is not in contractual relation resulting from the negligent performance of his duty under his contract with the contractee where the injury or damage is sustained after the work is completed and accepted by the owner.

2. The interpretation given a contract by the parties themselves while engaged in the performance of it is one of the best indications of the true intent of their contract, and should be given great if not controlling influence.

3. In the interpretation of a writing which is intended to state the entire agreement, preliminary negotiations between the parties may be considered in order to determine their meaning and intention, but not to vary or contradict the plain terms of the instrument.

Marks, Clare, Hopkins, Rauth, Garber & Batt, Omaha, for appellants.

L. J. Tierney, T. J. Stouffer, Cassem, Tierney, Adams & Henatsch, Omaha, for appellee.

Heard before WHITE, C.J., and SPENCER, BOSLAUGH, McCOWN, NEWTON, CLINTON and BRODKEY, JJ.

WHITE, Chief Justice.

This is an action for personal injuries and damages that the plaintiff Stover suffered resulting from the partial collapse of one side of an earthen wall in an excavation pit in which the plaintiff was working. The District Court granted summary judgment in favor of the defendant. On appeal the plaintiffs claim that there was a genuine issue of fact present for trial and ask a reversal of the summary judgment in favor of the defendant. We affirm the judgment of the District Court.

On November 19, 1970, Russell Cook, the executive vice president of Wiebe Construction Company (hereinafter referred to as Wiebe), met with Robert Miller of the defendant corporation, at Ed Miller & Sons, Inc., an excavating firm, to discuss a proposed excavation at the Westroads Shopping Center in Omaha, Nebraska. Wiebe was the general contractor working at the Westroads Shopping Center, and the defendant was a construction company specially engaged in the business of subcontracting excavation work. The parties came to an agreement that the defendant would do the excavating work for Wiebe. It is undisputed that at this meeting, it was agreed that Wiebe, the general contractor, would do all The shoring work. Shoring refers to the support built next to the sides of an excavation to prevent caving in of the earthen walls. This meeting between Cook and Miller on November 19, 1970, resulted in a contract, written in letter form, dated November 25, 1970, and sent from Cook to Miller. Miller accepted the contract. The contract provided for the defendant excavation corporation to 'complete excavation & concrete removal work.' The contract also provided that: 'The Subcontractor (Ed Miller & Sons, Inc.) shall protect the work of others, prevent and/or repair damage to work of others.' There was no Written provision in the latter contract which stated which party was responsible for the shoring.

The defendant corporation began the excavation work in late November 1970. The defendant completed the work, and removed all men and equipment from the site by December 31, 1970, and did not return to the site thereafter. The excavation was 30 to 35 feet deep and the sides were approximately perpendicular to the bottom of the excavation. Johnson, a foreman for Wiebe, the general contractor, was in charge of checking the excavation grades as the work progressed, to supervise and inspect the work and insure that the work was being done properly. There is no issue as to this fact. At no time did Johnson inform the defendant that the excavation was not being properly done. In his deposition, introduced in evidence, Johnson testified that at all times he was satisfied with the defendant's work. The evidence undisputedly shows that when the excavation by the defendant was completed, Cook, as the agent of Wiebe, accepted the work as satisfactory. Cook testified that the defendant's work was done properly. Subsequently the defendant was paid in full by Wiebe, the general contractor, for the excavation work, and as mentioned, defendant did not return to the site thereafter. The transaction, the contract, and its performance were completed and accepted.

On or about January 21, 1971, approximately 3 weeks after the defendant completed the excavation work, Wiebe, the general contractor, then began to put in the shoring. Both Johnson and Cook testified that the shoring structure was intended to prevent the wall of the excavation from collapsing.

During the progress of the shoring work, specifically, on January 22, 1971, the plaintiff Stover, an employee of Wiebe, the general contractor, who had accepted the work and was performing the shoring work, began working on the shoring job. After the plaintiff had been working for about I hour part of the wall unexpectedly collapsed. A large chunk of the dirt fell on the plaintiff causing the injuries that he complains of in this action.

The general theory of the plaintiff in his action against the defendant subcontractor is that the defendant was negligent in failing in shore the walls. It appears that the District Court granted a summary judgment to the defendant on the basis that the defendant owed no duty to the plaintiff at the time of the accident, because the defendant had completed the contract, it had been accepted by the general contractor Wiebe, defendant had relinquished control of the premises, and that Wiebe, the general contractor, was actually doing the shoring work...