Hausmeister, Inc. v. Waibel

329 N.E.2d 825, 29 Ill. App. 3d 289, 1975 Ill. App. LEXIS 2436
CourtAppellate Court of Illinois
DecidedJune 12, 1975
Docket74-140
StatusPublished
Cited by4 cases

This text of 329 N.E.2d 825 (Hausmeister, Inc. v. Waibel) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Hausmeister, Inc. v. Waibel, 329 N.E.2d 825, 29 Ill. App. 3d 289, 1975 Ill. App. LEXIS 2436 (Ill. Ct. App. 1975).

Opinion

Mr. JUSTICE STENGEL

delivered the opinion of the court:

Counterdefendant Hausmeister, Inc. (hereafter called “Hausmeister”), contracted to install a lawn sprinkler system at counterplaintiff Waibel’s apartment complex. Hausmeister filed suit to collect $595 allegedly owed by Waibel for part of the installation and for subsequent repairs to the system. Waibel counterclaimed for $27,268 in damages resulting from three instances of flooding in basement apartments which were asserted to have been caused by Hausmeister s defective installation and repair work. After a bench trial, the court entered judgment for Waibel on the complaint, and for Hausmeister on the countercomplaint, thus denying recovery to both parties. Appeal is taken only from the judgment on the countercomplaint.

The record shows that the lawn sprinkler system was installed at each of five apartment buildings at about the time construction of each was completed and that the sprinklers were used almost daily to keep newly laid sod saturated. Each building had a separate system composed of three metal sprinkler heads in front and three in back, which were screwed onto 8-inch plastic riser pipes. The risers extended below ground and connected to underground plastic supply pipes by “T” couplings. When the water was turned on, water pressure caused the sprinkler heads to oscillate. Each system was controlled by a shut-off valve in a basement utility room.

Three instances of flooding occurred. At Building No. 3 a riser was broken when it was bumped by a lawn mower in mid-April, 1970, and, after Hausmeister repaired the broken unit, flooding occurred in two basement apartments. A second break was then discovered in the underground pipe leading to the repaired riser, and after it was repaired by Hausmeister, no further flooding occurred. During cross-examination, Hausmeister s manager, Mr. Bell, testified that at least part of the water in the apartments came from the break in the pipe, but that other water would have been “available” in the area because of Waibel’s practice of overnight watering.

At Building No. 5 water was discovered in the basement in June, and investigation revealed a leak in the main sprinkler pipe at a connection located underground 6 to 12 inches out from the front wall of the building. There was contradictory testimony concerning the size of the leak, the amount of water discharged, and whether the leak was the cause of water in the apartments. Mr. Bell testified for Hausmeister that the leak was just a drip which discharged less than 1 gallon of water per hour and that, in his opinion, the flooding was caused by running the system 8 to 10 hours the previous night. Waibel, on the other hand, testified that a large quantity of water was spraying from the pipe connection and that he believed all of the water in the basement came from the leak.

At Building No. 1 water entered the basement in July, and Waibel found one sprinkler head broken off at the ground with water ejecting vertically from the riser. Waibel testified that, having seen a sprinkler head vibrate off the riser at Building No. 2 a week later, and having seen other sprinkler heads broken off at other times, in his opinion the sprinkler heads were set too high above ground and that oscillation of the heads jarred the plastic risers until they broke, and that the broken sprinkler head had caused the flooding at Building No. 1. Waibel also testified that as a result he instructed Hausmeister to install metal risers and to lower the risers and set them in concrete to prevent such breakage in the future. Bell testified that vibration was normal, that the sprinklers were the correct height above ground, that in his opinion the broken sprinklers were damaged as a result of vandalism or accidents, and that he had voluntarily without charge replaced all plastic risers with shorter metal risers set in concrete to prevent vandalism. A witness for Waibel testified that some sprinkler units still have plastic risers.

Waibel also testified that the sprinkler system has worked perfectly at all times except the three instances of flooding, and that no other flooding has occurred from any other cause. The latter testimony was contradicted by evidence that water damage had occurred at Building No. 4 during the same period of time. A landscape expert, who had charge of landscaping the apartment complex, testified on behalf of Waibel that all-night watering of the new sod was desirable and would not have caused water to enter the basement apartments. Bell testified that each sprinkler head put out 184 gallons of water per hour, which was the equivalent of 1 inch of rainfall each hour, and that he had warned Waibel against excessive use of the system.

At the close of the bench trial, the court asked the attorneys to submit briefs which they failed to do. The order finally entered by the court expressly found that the sprinkler system installation caused water to get into the buildings, that the system was unusable for the purpose for which it was sold, and that therefore Hausmeister could not recover on the complaint. On the counterclaim the court found that Waibel had control of the sprinkler system and knew its condition and still used it, that the work of Hausmeister was not the proximate or nearest cause of the injury, and therefore that Waibel could not recover. Hausmeister did not cross-appeal from tire judgment for Waibel on the complaint.

On appeal, Waibel argues that these findings confuse his action for breach of an implied warranty under the contract with a tort action and that the court has in effect imputed contributory negligence to Waibel. Although the term “proximate cause” is frequently used in tort cases, we believe that mere use of that phrase in a contract action is not error per se. In actions for breaches of contract and for torts alike there must be a wrongful act done and a loss resulting from that wrongful act, and the injury suffered by the plaintiff must be the natural and not merely the remote consequence of defendant’s wrongful act. (Town of Thornton v. Winterhoff, 406 Ill. 113, 92 N.E.2d 163 (1950); Undergrour, Construction Co. v. Sanitary District of Chicago, 367 Ill. 360, 11 N.E.2d 361 (1937).) The primary question in this case, as the trial court noted, is whether the evidence sustained Waibel’s burden of proving that the water damage was caused by Hausmeister’s defective workmanship.

Waibel also contends that the court’s findings of fact and judgment on the countercomplaint are inconsistent with' the findings and judgment on the complaint and are against the manifest weight of tire evidence. Hausmeister argues that the evidence before the court supported the findings and judgment on the countercomplaint, and, even if we should decide that the findings were incorrect or inconsistent, we should nevertheless affirm the judgment. We agree that our only concern is whether the judgment was correct, regardless of the reasons given. Keck v. Keck, 56 Ill.2d 508, 309 N.E.2d 217 (1974); Platz v. Walk, 3 Ill.2d 313, 121 N.E.2d 483 (1954).

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Bluebook (online)
329 N.E.2d 825, 29 Ill. App. 3d 289, 1975 Ill. App. LEXIS 2436, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hausmeister-inc-v-waibel-illappct-1975.