Bittker v. Groves

Wiest, J. Two like actions to recover damages occasioned by rain water to merchandise in two store buildings in the city of Ann Arbor are here consolidated, were so tried in the circuit court without a jury and separate judgments entered against defendant James A. Moynes & Company. In the Bittker and Frank case the State Savings Bank of Ann Arbor, Ben Groves, Florence Groves, Nellie Groves, Harold Groves and Jean Groves were also defendants and, at the close of plaintiffs’ proofs, on motion of their counsel and by consent of the attorneys for plaintiffs, they were discharged. Like action was had in the Milton’s, Incorporated, case. This left James A. Moynes & Company sole defendant. *43 James A. Moynes & Company had a contract to make alterations, repairs, and new construction on the State Savings Bank Building in Ann Arbor, and sublet to Jacob Hoffman Construction Company at a price of $25,600, “the masonry and concrete work, brick and tile work, stone, granite and cleaning down of building, also wrecking of required masonry and concrete work and the shoring for same.” In performing a part of such work the subcontractor had to stand scaffolding on the tar-covered tin roofs of the adjoining store buildings, occupied by plaintiffs, and this necessity was apparent to the principal contractor at the time of letting the subcontract. Plaintiffs claimed that such use of the roofs damaged the same so that, shortly thereafter, when a heavy rain occurred, water came through the roofs to the stores occupied by them with stocks of merchandise, causing damage thereto. In one of the stores plaintiffs Bittker and Prank, doing business as Lorraine Shop, had a stock of millinery and ladies ready-to-wear and furnishings damaged by the water, and the court awarded, for damages to the merchandise, rug, and cases, $840, and $300 for loss of profits. In the other store, plaintiff Milton’s, Incorporated, had a stock of clothing, and the court awarded damages to merchandise, plus loss of profits amounting to $600, or a total of $1,725. Upon appeal it is claimed that James A. Moynes & Company cannot be held liable for damages sustained by plaintiff on account of the negligent acts, if any, of the subcontractor; that the damage was occasioned by an abnormal rainfall and the court erred in excluding testimony of the effect of such rainfall on other roofs in the vicinity; also in excluding statements claimed to have been made by the owners of *44 the buildings as to the condition of the roofs prior to the rainfall; and in awarding loss of profits. James A. Moynes & Company, as principal contractor, was liable under the evidence for the damage occasioned by the negligence, if any, of the subcontractor. Frank A. Rossbach was defendant’s superintendent in charge of the whole job and he exercised supervision over acts of the subcontractor upon the roofs of the store buildings. Defendant invokes the rule applied in case of an independent contractor, but that rule has many exceptions, and this case, under the evidence, comes within the one wherein the principal, by retention or exercise, or even quasi supervision or control, remains' responsible. Use of the store roofs by the subcontractor was called to the attention of the superintendent of the principal contractor, and there was assumption of supervision by him. See Wight v. H. G. Christman Co., 244 Mich. 208. Supervision in fact exercised is equivalent to supervision expressly retained in fixing liability of the principal contractor. The contract between the principal and subcontractor was silent on the subject of supervision. The subcontractor erected scaffolds resting upon the roofs of the buildings occupied by plaintiffs ’ stores. Defendant claims that the condition of the roofs and the parapet wall of the buildings, occupied by plaintiffs prior to entry thereon by the subcontractor, was such as not to withstand the abnormal fall of rain. The condition of the roofs was an issue of fact and we find no occasion for holding the determination of the trial judge contrary to the preponderance of the evidence. At the trial the court held that statements made by the owners of the stores as to the defective condition of the roofs previous to entry thereon by *45 the subcontractor were inadmissible and testimony along that line was taken in a special record, and counsel for defendant states: “It must be assumed that the admissions of Ben Groves and Harold Groves above referred to and constituting part of the special record made were not in any way considered by the trial court in determining the proximate cause of the alleged damage resulting to appellees by the entrance of water into the store buildings in question following the June 20th rain. ’ ’ Benjamin Groves and Harold Groves testified at the trial and were questioned about the previous condition of the roofs. Contradictory statements, if any, made by them did not constitute substantive evidence, and in no event could it be employed beyond impeaching purposes. Such testimony appearing in the special record, if given consideration, does not lead to any change in the findings made by the circuit judge. The court was not in error under the evidence in awarding damages for loss of profits. The evidence brought that element of damage to reasonable certainty within the rule stated and employed in Allison v. Chandler, 11 Mich. 542; Ludwigsen v. Larsen, 227 Mich. 528; Rogers v. Youngs, 252 Mich. 420, 424; Federal Gravel Co. v. Railway Co., 263 Mich. 341. Neither was the court in error in excluding testimony “concerning the effect of the abnormal rainfall of June 20, 1937, on the streets and on two other buildings in the vicinity of the buildings in question. ’ ’ We find no reversible error. The judgments are affirmed, with costs to plaintiffs. Butzel, C. J., and Bushnell, Sharpe, Potter, Chandler, North, and McAllister, JJ., concurred.