United Dispatch v. E. J. Albrecht Co.

• Citation: 62 S.E.2d 289,135 W.Va. 34
• Decision Date: 21 November 1950
• Docket Number: No. 10273,10273
• Parties: UNITED DISPATCH, Inc. v. E. J. ALBRECHT CO.
• Court: Supreme Court of West Virginia

Page 289

62 S.E.2d 289

135 W.Va. 34

UNITED DISPATCH, Inc. v. E. J. ALBRECHT CO.

No. 10273.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 3, 1950.

Decided Nov. 21, 1950.

Syllabus by the Court.

A contract made and intended for the benefit of the contracting parties only does not give a person who is not a party thereto the right to maintain an action on such contract as a beneficiary thereof under Code, 55-8-12.

Steptoe & Johnson, and James M. Guiher, all of Clarksburg, David A. Watts, Chicago, Ill., for plaintiff in error.

Ambler, McCluer & Davis, Parkersburg, for defendant in error.

A. Devitt Vanech, Asst. Atty. Gen., Charles Lee Spillers, U. S. Atty., Wheeling, Roger P. Marquis, Atty., Dept. of Justice, Frederick W. Smith, Atty., Dept. of Justice, Washington, D. C., amicus curiae, for United States.

LOVINS, President.

The purpose of this action of assumpsit, brought in the Circuit Court of Wood County, West Virginia, is to recover damages to a building and for loss of the use of such building, allegedly caused by an excavation made adjacent to such building.

United Dispatch, Inc., a corporation, the owner of the building, brought this action against E. J. Albrecht Company, a corporation, which admittedly excavated the land adjacent to plaintiff's building. Plaintiff and defendant hereinafter will be so designated.

The building is located near the confluence of the Ohio and Little Kanawha Rivers, in the City of Parkersburg, and consists of three sections, constructed at different times. One section, designated as 'Swan Hotel', was built some time prior to 1861; another section, designated as 'United Merchandise' building, was built about the year 1915; and the third section, designated as 'Parkersburg Transfer & Storage' building, was completed some time in 1910 or 1911. We are here concerned with the section or unit of plaintiff's building designated as 'Parkersburg Transfer & Storage' building. It seems, however, that all three sections of the building were used by plaintiff in conducting a transfer and storage business, and in storing motor vehicles.

The building is located on low land, and has been frequently subjected to floods. A stage of water in excess of thirty-four feet floods the building. The 'Parkersburg Transfer & Storage' building will hereinafter be designated as 'Section 3'. It is constructed of brick, timber and metal sheeting, and is four stories high. The first two stories are constructed of brick, and the other two stories of sheet metal fastened to wooden frames. The walls of the first story of Section 3 are nineteen inches in thickness, and those of the second story are approximately thirteen and one-half inches. The walls are cracked. There are indications that such cracks had been repaired and that the building had subsided prior to the time defendant made the excavation here considered.

Defendant offered to prove that Section 3, bounded on the northeast side by Kanawha Street (First Street) and by Ohio Street, encroaches upon the right of way of Kanawha Street approximately eleven feet, and upon the right of way of Ohio Street five feet, four inches, but that proof was rejected.

The United States of America, on November 4, 1947, entered into a contract with the defendant for the construction of a concrete wall and levee at Parkersburg, designated as Section 2. The estimated amount to be paid on the contract was $4,262,161.00. The wall and levee were located generally along the left descending bank of the Ohio River, along the right descending bank of the Little Kanawha River, and were constructed for the purpose of affording local flood protection to the City of Parkersburg. The contract and the specifications, incorporated therein and made a part of the contract, are voluminous. For the purpose of this opinion, we deem a recitation of the following parts of the contract and specifications sufficient:

'Article 10. * * * He [the contractor] shall be responsible for all damages to persons that occur as a result of his fault or negligence in connection with the prosecution of the work. * * * the contractor shall be responsible for all loss or destruction of or damage to property that occurs as a result of his fault or negligence in connection with the prosecution of the work, and shall be responsible for all materials delivered and work performed until completion and final acceptance. * * *

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'* * * The contractor shall protect all existing structures, utilities and work of any kind against damage or interruption of service which may result from operations of the contractor. Damage or interruption of service resulting from failure so to do shall be repaired or restored promptly by or at the expense of the contractor.'

'All excavations which are more than five feet in depth shall be suitably shored unless side slopes are 1 on 1 or flatter. Any foundation or structure whose stability is endangered by adjacent excavation shall also be suitably shored. * * * All shoring used shall have the prior approval of the contracting officer [the District Engineer at Huntington, West Virginia,]; however, the contractor will be held solely responsible for the adequacy of any shoring employed.

'It is contemplated that driving of steel piling shoring and unwatering of the excavation by means of a well point system or other equivalent means will be necessary in order to perform the work of excavating the unsuitable material and replacement in the dry of suitable foundation material in the above area.'

With reference to the driving of piling or dewatering of the excavation, the defendant sought the advice of a specialist in dewatering excavations, and, as a result, a detailed plan was submitted to the office of the District Engineer at Huntington, which had for its purpose the elimination of driving any piling and substituting therefor a well point system. The change was approved, as evidenced by a letter, dated March 1, 1948, addressed to the defendant, and signed by the technical assistant to the contracting officer, which reads in part as follows:

'Receipt is acknowledged of your letter dated 17 February 1948, inclosing three prints of Moretrench Corporation's drawing No. L-333 in connection with unwatering the excavation for the wall base, Parkersburg Local Protection Project, Section 2.

'The drawing has been reviewed and appears to be generally satisfactory subject to the following comments:

'a. In order to prevent subsequent boils during flood periods, all holes shall be filled with a concrete or other suitable impervious material from the top of the sand and gravel (approximate elevation 565.0) to the top of the hole as directed by the contracting officer in the field.

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'c. In generally approving the method of excavating and unwatering the excavation, it is to be distinctly understood that you are to assume full responsibility for the adequacy of the method you propose to use in regard to the successful unwatering of the excavation and for the stability of structure adjacent to the excavation.'

A well point system calls for the installation of numerous pipes driven into the underlying earth which, in effect, are wells. When installed, such wells are connected to a larger pipe and a heavy suction pump is connected with the larger pipe, so that the water may be pumped from the strata of the earth and the water table thereby lowered, the theory being that earth strata so treated would be in a comparatively dry condition.

Core drillings or borings along the right of way where the flood wall was to be constructed at points adjacent to plaintiff's building disclosed that there was vegetable matter in some of the strata, which rendered the ground unsuitable for the foundation. This condition required extensive excavation and back-filling with suitable materials, so that the foundation of the flood wall would be secure. No piling was driven, and no shoring was installed, defendant depending on the well point system to dewater the excavation. The excavations were made on a 1 on 1 slope or at an angle of forty-five degrees with the horizontal, and commenced at or near the northwest wall of Section 3 of plaintiff's building.

The defendant advised plaintiff by registered mail of its intention to make the excavation. The work was commenced in June, 1948, and was prosecuted with vigor and haste. Notwithstanding the dewatering of the earth strata and the haste with which the excavation was made, numerous slips occurred, from which the wall of Section 3 of plaintiff's building subsided from one to two feet at different places, causing the doors, windows and floors of said building to sag and break. By reason of such condition of the building, plaintiff was required to move a large amount of stored materials, then located in the building. Numerous cracks in the walls of the building are shown, and it is established that plaintiff has lost the use of a portion, if not all, of Section 3.

The record discloses that the grades of the two streets adjacent to plaintiff's building have been raised; but plaintiff's disclaims seeking any damages in this action on account of such changed grades.

This action was instituted on the contract above-mentioned upon the theory that it was made for the sole benefit of plaintiff, or that plaintiff is a member of a class for whose sole benefit the contract was made, as authorized by Code, 55-8-12.

The Circuit Court of Wood County tried this action upon the theory that plaintiff was a third party beneficiary to the contract between the United States of America and the defendant; and that the measure of recovery herein was the cost of restoring the building, plus the loss of the use thereof. Testimony was offered by defendant to show that plaintiff paid $12,000.00 for the three sections of the building about two and a half years prior to the date of the trial. That evidence was excluded. Testimony showing the...