Truscott v. Peterson, 7255

• Citation: 78 N.D. 498,50 N.W.2d 245
• Decision Date: 30 November 1951
• Docket Number: No. 7255,7255
• Parties: TRUSCOTT et al. v. PETERSON et al.
• Court: United States State Supreme Court of North Dakota

Page 245

50 N.W.2d 245

78 N.D. 498

TRUSCOTT et al. v. PETERSON et al.

No. 7255.

Supreme Court of North Dakota.

Nov. 30, 1951.

Syllabus by the Court

1. Where one of two defendants entered into a general contract with plaintiffs for the construction of a store building, including excavation for foundation and footings, and said defendant employed another defendant to do such excavating, and the evidence established that both defendants were guilty of negligence causing the building occupied by plaintiffs to collapse to their damage the defendants are jointly and severally liable for such damages.

2. Where two defendants were sued jointly and it appears from evidence that one of said defendants is a member of a partnership, there is no defect in parties defendant, notwithstanding such partnership was not joined, where cause of action is based on tort.

3. The evidence is examined, and it is held, for reasons stated in the opinion, that the defendants are jointly and severally liable to plaintiffs for damages which are the proximate result of defendants' negligence.

Cox, Cox, Pearce & Engebretsen, Bismarck, for plaintiffs and respondents.

Strutz, Jonsonius & Fleck, Bismarck, for defendant and appellant, peterson.

Hyland & Foster, Bismarck, for defendant and appellant, Monson.

SATHRE, Judge.

This is an action brought by Eva Truscott and R. L. Truscott, wife and husband, copartners, plaintiffs, against Ludvig Peterson and M. B. Monson, defendants, to recover damages alleged to have been sustained by reason of negligence on the part of the defendants in excavating trenches on a lot adjacent to a building in which the plaintiffs were operating a grocery business.

The complaint alleges that for several years prior to September 6, 1947, the plaintiffs, as copartners, operated a grocery store under the name of 'Park Foods' in a building located on lot 29, block 30, original plat of the City of Bismarck, North Dakota. That the plaintiffs had purchased lots 30 and 31 immediately adjacent to the lot and building in which they operated their grocery business. They entered into a general contract with the defendant Ludvig Peterson for the construction of a new building on said lots 30 and 31 where they planned to move their grocery business. Under the terms of the contract the defendant, Peterson, agreed to construct the building to its entire completion including excavating for the footings and foundation; he contracted with the defendant, Monson, to do the excavating for the footings and foundation. The complaint then alleges that the excavation was done in such careless and negligent manner by the defendants, without taking proper precaution to provide lateral support that by reason of such negligence on the part of the defendants the building in which the plaintiffs were operating their grocery business collapsed and fell into the excavation for the new building, destroying merchandise, equipment, showcases and other property housed in such building to the damage of the plaintiffs in the sum of $15,000.

The defendants answered separately. The defendant, Peterson, admits that he entered into a contract with the plaintiffs for the construction of a store building upon lots 30 and 31, owned by the plaintiffs as alleged in the complaint, but denies that he was negligent in excavating for the foundation of the new building; that the damages which resulted to the plaintiffs by reason of the collapse of the building occupied by them was due to the loose condition of the soil supporting it; that its foundation was faulty and that it was not constructed as required by the revised building ordinance of the City of Bismarck for 1939, as to the depth below the street level and other requirements of such ordinance; that the plaintiffs were aware of the faulty construction of said building and the loose soil supporting it. He further alleges that while he had the general contract for the construction of a new building he sublet the excavation for the foundation to the defendant, Monson, who did such excavation as an independent contractor, and that defendant Peterson had no control, supervision or authority over the work being done by the defendant, Monson, and that the plaintiffs had knowledge of the fact that the defendant, Peterson, did sublet the excavation to the defendant, Monson, and consented thereto.

The answer of the defendant, Monson, denies any and all liability for any damages to the plaintiff and denies specifically any negligence in excavating for the building to be constructed for the plaintiffs; denies that he did such excavation as an independent contractor and alleges that he furnished to the defendant, Peterson, certain power equipment, and a skilled operator and a helper, at a hire rate by the hour, and that such equipment and operators were at all times under the direct supervision and control of the defendant, Peterson.

By stipulation of the parties the case was tried to the court without a jury. At the opening of the trial plaintiffs' counsel stated that the amount of damages they expected to prove would not exceed $8,500. The court found in favor of the plaintiffs and against both of the defendants, and held that the collapse of the building and the damages sustained by the plaintiffs were due to the careless and negligent manner in which the defendants and their employees excavated the trenches for the new building, and ordered judgment to be entered in favor of the plaintiffs and against the defendants in the sum of $8,489.

It is the contention of the plaintiffs that the collapse of the building and resulting damages were caused by the careless and negligent manner of the defendants in excavating along the Mundy building; that the defendants saw that the soil was loose and was caving in, and that notwithstanding the caving in of the soil they continued excavating without taking any precaution to shore up and brace the wall, or to notify the plaintiffs, and that as a result the building collapsed.

The defendants contend, however, that the caving of the soil was due to the added weight of the building thereon, and that in its natural condition the soil would not have caved in, and that the caving in was due to the negligent and improper construction of the building by the plaintiffs in that it did not have proper footings and foundation; that the plaintiffs knew that the excavation was being made and knew of the loose condition of the soil, and did not notify the defendants thereof and that plaintiffs took no steps to protect said building from danger caused by such excavation.

The defendants have appealed to this court and demand a trial de novo.

The main contentions of the defendants in this appeal as set forth in their joint specifications of error are as follows:

1. That the right of lateral support applies only to the land itself and does not apply to buildings or artificial structures thereon.

2. That the collapse of the building occupied by the plaintiffs and the resulting damages were not due to any negligence of the defendants or either of them, but were due to the faulty construction of the building and the loose, filled in soil upon which it was situated.

3. That the plaintiffs did not take proper measures to make arrangements for continuation of their grocery business so as to reduce their damages, if any damages there were, for which the defendants were liable.

4. That the evidence does not sustain the damages allowed by the district court.

5. The defendant Monson assigns as error that the district court held, in effect that he was an independent contractor.

6. The defendant Peterson contends that since the district court held the defendant Monson to be an independent contractor, if there was any liability, the defendant Monson alone would be liable.

The undisputed facts are substantially as follows: From June 1941 to September 6th, 1947, the plaintiffs operated a grocery business in a building located on lot 29, block 30, original plat of the City of Bismarck, owned by A. W. Mundy, under a month to month lease. Sometime prior to September 1947, the plaintiffs had purchased lots 30 and 31, block 30, original plat of the City of Bismarck, N. D., immediately adjacent to the lot and building in which they were operating their grocery business. Their purpose in purchasing these lots was to erect a building of their own for their grocery business. Accordingly, they entered into a written contract with the defendant Ludvig Peterson, by the terms of which Peterson agreed for a stipulated consideration to construct the entire building to its final completion, including the excavation for footings, foundation and basement. He made arrangements with the defendant, M. B. Monson, for excavating for the footings, foundation and basement, and the defendant, Monson, furnished a power shovel, an operator and a helper to do the excavating necessary for the new building at an hourly rate.

On September 5th, 1947, the defendant, Monson's employee Sylvester Ewonuik, and Leon Larson, a partner of the defendant Monson, moved the power shovel to said lots 30 and 31, and started excavation for the new building. On the morning of September 6, 1947, they finished excavating on the east side of lot 31 and on the north side of lots 30 and 31, and began excavating on the west side of lot 30, next to lot 29, on which was located the building in which the plaintiffs operated their grocery business. The excavation along the east side of the building was completed about 11 o'clock in the morning of September 6th and shortly thereafter the Mundy building collapsed and fell into the excavation, wrecking the east side of the building and destroying merchandise, fixtures, equipment and other property. The soil of the three lots 29, 30 and 31, was composed of light, sandy, loose earth, cinders, ashes and debris that had been filled in from time to time.

The plaintiff R. L. Truscott, testified;...