No. 12639 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1974 

STEPHEN T. BUSH, 

Plaintiff and Respondent, 

ALBERT D. WARDELL CONTRACTOR, 

INC., A CORPORATION, 

Defendant and Appellant. 

Appeal from: District Court of the First Judicial District, 

Honorable Gordon R. Bennett, Judge presiding. 

Counsel of Record: 

For Appellant : 

Clayton R. Herron argued, Helena, Montana 

For Respondent : 

Robert F. Swanberg argued and Arthur P. Acher argued, 

Helena, Montana 

Filed : \JQV A : 3 '974 

- - 

Submitted : September 17, 1974 

Decided : NOV 1 3 1574 
Mr. Justice Frank I. Haswell delivered the Opinion of the Court. 

This appeal arises from a personal injury action wherein 

plaintiff Stephen T. Bush was awarded a $50,000 judgment against 

defendant Albert D. Wardell Contractor, Inc. Defendant appeals 

from the judgment and the denial of its motions for a directed 

verdict, judgment notwithstanding the verdict, and new trial. 

The case results from an accident which occurred on July 

9, 1970, at the construction site of the Colonial Hilton Convention Center in Helena, Montana. Plaintiff was an employee of 

Lowe Construction Company, the general contractor of the project. Defendant was the subcontractor engaged by Lowe Construction Company to do the masonry work. 

The plans called for the complex to be built as three 

separate buildings--the convention center and two wings which 

would house the sleeping accomodations. The two wings were to 

be separated from the center by one inch of free space, a 

measure designed to reduce damage in the event of an earthquake. 

It was at the point where the center was to parallel one 

of the wings that the accident occurred. The wings had been 

constructed first, and construction had begun on the building that 

was to be the convention center. At the point where the incident 

occurred, there were to be three walls raised in positions roughly 

represented by the following diagram: 

4 

/-- 

sleeping quarters 

8" block wall 

4"masonry wall 

which fell 

6" stud wall 

c convention centerd d 
The eight inch block wall had already been completed and 

formed the end wall of one of the wings. During construction, 

metal ties had been inserted in the eight inch block wall with 

the intent that they would be joined to the four inch wall when 

it was built as a means of stabilizing the latter wall. 

However, the architect's plans required that there be no 

ties between the two walls. Defendant and the general contractor 

were concerned about this requirement, since the wall would be 

unstable unless supported by some means. 

After much discussion, the general contractor told defendant 

to build the four inch wall using the stablizing ties, although 

the number of ties to be used was not specified. Defendant then 

constructed the four inch wall to a height of eighteen feet, 

using some of the ties which were protruding from the eight inch 

wall, but bending a majority of them over rather than attaching 

them. 

Although the plans called for the wall to ultimately reach 

a height of twenty-six feet and no direction had been given as 

to whether it should be built in entirety or in stages, defendant's 

crew left the site after raising the wall to eighteen feet. The 

four inch wall then stood for approximately a week before the 

general contract~r ' s crews mstructed and erected several panels of 

the six inch stud wall next to it. The stud wall panels were 

constructed on the ground and then raised to their final position 

within one-half inch of the four inch wall. 

On the afternoon of the accident, two of the panels had been 

raised and positioned several hours before plaintiff began hand 

tightening nuts on the bolts which anchored the panels to the 

floor. As he was doing this the portion of the four inch wall 

which extended above the stud wall collapsed, showering plaintiff 

with bricks and mortar. The injuries he sustained are those for 

which compensation was sought and granted in the district court. 
Defendant appeals the verdict and judgment here, raising 

nineteen issues in its appellate brief. For purposes of this 

opinion, the questions raised in those nineteen issues will 

be considered as they relate to the four general issues: 

1. Was the defendant negligent? 

2. Was the defendant's negligence, if any, the proximate 

cause of plaintiff's injuries? 

3. Were the damages which the jury awarded supported by 

admissible evidence? 

4. Should the district court have granted a directed verdict, 

a judgment notwithstanding the verdict, or a new trial? 

plaintiff's complaint alleged four separate grounds of 

negligence: (1) Failure to attach the stabilizing ties; (2) 

Failure to brace the wall by some external means; (3) Erecting 

the wall to a height of eighteen feet instead of doing it in 

stages as the interior construction progressed; and (4) Failure 

to warn plaintiff or the general contractor of the dangerous 

instability of the wall. Defendant denies that any of these 

counts constitute negligence. 

Defendant argues that some of the ties were used, even 

though the architect's plans required that none be installed. 

It cites 13 AmOJur.2d, Building and Construction Contracts, 5 140, 

for the proposition that defendant's following of the plans relieved it of all liability. The pertinent portion of that 

section reads: 

'I* * * a contractor followine ~lans and 

(~m~hasis added). - 

However, cases footnoted in support of that proposition 

clearly establish that the subcontractor is still liable unless a 

contractor of average skill and ordinary prudence would have 

followed those specifications, Ryan v. Feeney & S.Bldg. Co., 239 

N.Y. 43, 145 N.E. 321, 41 A.L.R. 1; Tipton v. Clower, 67 N.M. 

388, 356 P.2d 46. Since all the persons involved in this incident 
agreed that an unsupported, four inch wall of this height would 

be dangerously unstable, the evidence at least created a jury 

question as to whether a reasonably prudent and skillful contractor would have acted as defendant did. 

The same considerations would apply to defendant's failure 

to externally brace the wall, and to defendant's one-step construction to a height of eighteen feet. It is true that no one 

told defendant to use braces or to proceed in steps, but the jury 

properly could determine whether a reasonable man with defendant's 

knowledge of the wall's instability would have taken such precautions. 

Defendant also contends there was no duty to warn since 

the general contracor was on the site throughout the time the wall 

was under construction. It is suggested the general contractor 

knew, or should have known, that the ties were not used. However, 

the general contractor's foreman testified he thought the ties 

had been used, and a reasonable inspection would not have proved 

otherwise. Again, there was evidence on which a jury might 

reasonably conclude that defendant should have warned others, but 

failed to do so. 

Since it appears from the record that a jury could reasonably 

conclude that defendant was negligent in some or all of the 

alleged acts or omissions, we then must explore the contentions 

that there were intervening causes which relieved .defendant of 

liability for its negligence. The first suggestion is that the 

general contractor accepted the completed wall with knowledge 

of its unstable condition, and therefore the negligence which 

proximately caused plaintiff's injury was the general contractor's 

failure to provide for his employees' safety. 

If those were the facts here, defendant's contention would 

have some merit. As suggested by defendant, the case of Sumner 

v. Lambert, 96 Ohio App. 53, 121 N.E.2d 189, 198, would then be 

close to this case on its facts. However, as previously discussed, there was evidence the unstable condition of the wall 
was unknown to anyone but defendant. This in itself would make 

Sumner inapplicable, for that opinion clearly states: 

"In the case at bar, it is not alleged 

that there were any hidden defects in the 

excavation, known to the defendants and 

unknown to * * * [decedent]". 

Furthermore, there are factual questions in the instant case 

as to whether the wall was completed (even defendant testified 

that it was not) or as to whether the general contractor accepted 

the wall. There clearly is not sufficient evidence to warrant 

a reversal on this point. 

The other intervening cause suggested by defendant is that the 

stud wall allegedly struck the masonry wall during the process 

of raising the former to its position. Plaintiff produced 

witnesses who participated in the raising of the wall who testified that the stud wall didnot strike the masonry wall. Defendant 

elicited testimony from after-the-fact witnesses to the effect that 

the physical evidence clearly showed that the stud wall struck 

the masonry wall. Defendant would have us prefer the opinions 

based on the physicial evidence over the testimony of eyewitnesses. 

While it is true that undisputed physical facts control over 

testimony (Hayward v. Richardson Const. Co., 136 Mont. 241, 347 

P.2d 475, 77 ALR2d 1144), that control is effective only when the 

physical facts admit of only one interpretation. The physical 

fact involved here is that the masonry wall fractured and fell 

at approximately the level of the top of the stud wall. However, 

the evidence also indicates that the masonry wall stood for 

several hours after the stud wall was raised. Furthermore, the 

evidence might be interpreted to mean that the stud wall prevented the masonry wall from collapsing at a lower level by acting 

as a brace against that portion of the wall. Again, it was a 

question for the jury to determine. 

Having determined there was sufficient evidence to support 

a jury finding of liability, we look to the admissibility of the 

evidence which the jury used to arrive at a damage figure. Defendant's challenge to the damages is that the court allegedly 
admitted a doctor's opinion which was based, at least in part, 

on the plaintiff's subjective complaints. It is true that the 

testimony objected to was that of a doctor who treated the 

plaintiff at the time of the accident and then did not see 

him again until shortly before the trial. However, the record 

indicates that the doctor's opinion of the degree and permanency 

of plaintiff's injuries was given in response to a question asking 

him to disregard the plaintiff's subjective complaints. The 

doctor's initial treatment of the plaintiff, his subsequent 

examination, and his reading of the reports of other treating 

physicians surely qualified him to give such an opinion without 

reference to the subjective complaints. Also the jury was 

cautioned not to consider any testimony as to these subjective 

complaints. We find no error here. 

Defendant also argues that evidence and instructions relating 

to mortality and annuity tables should not have been given to the 

jury. The objection is that even at the time of trial plaintiff 

was making more money than he was at the time of the accident and 

therefore his earning capacity had not been impaired by his 

injuries. 

While the use of such tables clearly shows that the jury 

considered plaintiff's loss of future earnings, we find that 

such consideration was warranted by the evidence. The construction 

job which plaintiff held when he was injured was only summer 

employment to help finance hts college education. By the time of 

the trial he had completed the necessary education to become a 

teacher and was employed in that capacity. His earnings as a 

teacher were higher than his earnings on the construction job. 

Were this the only evidence, there might be some merit to 

defendant's contention. However the jury was also aware that 

teachers routinely seek other employment during the summer when 

school is not in session. It also heard testimony that plaintiff would not be able to coach any athletic teams, an activity 

which produces income in addition to the regular teaching salary. 
These factors, combined with the limitations on lai in tiff's 

enjoyment of his previously athletically oriented life indicate 

the introduction of the tables was clearly appropriate. Bracy 

v. Great Northern Railway Company, 136 Mont. 65, 69, 343 P.2d 

848. 

The final question then is whether the court should have 

directed a verdict, granted a judgment notwithstanding the 

verdict, or granted a new trial. As discussed heretofore, we 

have found no error in the legal theories involved here. Those 

theories were reflected in the instructions given to the jury, 

and we find those instructions to be appropriate. 

Therefore, finding no error of law, and substantial evidence supporting the verdict, we affirm the judgment. 

Justice 

We Concur: