American Reciprocal Insurers v. Bessonette

385 P.2d 759, 384 P.2d 223, 235 Or. 507

• Court: Oregon Supreme Court
• Decided: August 2, 1963
• Status: Published

Opinions

SLOAN, J.

We could not improve upon appellant-plaintiff’s statement of this case taken from its brief:

“This appeal involves an action of law for damages tried by the court sitting without a jury.

“The owner, hereinafter referred to as the Lafferty partnership, contracted with defendant (this should be defendants) Bessonette and Graff to erect a grocery warehouse and with defendant Pacific Automatic Sprinkler to install a sprinkler system. Defendant Bessonette and Graff * * * caused a concrete wall to be constructed so as to cause a main sprinkler pipe to break after the building had been completed and accepted. Water under great pressure in the pipe escaped and damaged the building. The tenant, Lefferty-Pioneer Corporation, had groceries stored in the warehouse which were damaged. Plaintiff insured both the partnership and the tenant corporation and is subrogated to their claims.

“The court granted an order of involuntary nonsuit to the contractor which built the sprinkler system.

“After trial, the court found defendant Bessonette and Graff negligently and proximately caused the damage complained of, but not responsible for the injury to the tenant for lack of privity. Judgment was entered accordingly against defendant for damages to the building only. Appeal is against defendant Bessonette and G-raff only.”

Decision in this case is governed by the recent case of Strandholm v. General Construction Co., decided June 12,1963, 235 Or 145, 382 P2d 843. Obviously, the trial judge did not have the advantage of the decision in Strandholm, when he decided this case, nor did counsel at the time the case was submitted here.

It is claimed that even though the privity of contract doctrine may not apply to manufacturers and the like, it should apply to building contractors. We think such a distinction cannot be justified. See text and cases cited in 1 Products Liability, 1960, Frumer & Friedman, §5.03(2), page 37, and Prosser, Torts, 1955, § 85, page 517-19; Hanna v. Fletcher, 1956, 97 App D.C. 310, 231 F2d 469, 58. ALR2d 847. And, it is held that the lapse of time which may exist between the time of negligent construction and eventual injury is a factor for the jury to consider in determining the causal connection between the negligence and the injury. Leigh v. Wadsworth, 1961, Okla, 361 P2d 849; Hale v. Depaoli, 1948, 33 Cal2d 228, 201 P2d 1, 13 ALR2d 183; Begley v. Adaber Realty & Investment Company, Mo, 358 SW2d 785; and see the excellent opinion by Judge Murrah in Pryor v. Lee C. Moore Corporation (USCA 10th Cir 1958), 262 F2d 673, which overruled a prior case (Lynch v. International Harvester Co. (CCA, 10th Cir 1932), 60 F2d 223) in the same circuit; 1 Products Liability, 1960, Frumer & Friedman, § 11.03.

After the trial judge had found that defendants were factually liable he denied any of the damage suffered by tbe tenant because of tbe lack of privity. Tbe Strandholm, case holds that there was a duty in spite of the lack of privity, so this case must be reversed. Inasmuch as the only issue now left undetermined is that of damages the cause is remanded for the purpose of finding the amount thereof. Scott et al v. Lawrence Whse. Co., 1961, 227 Or 78, 101, 360 P2d 610.