B's Company, Inc. v. BP Barber & Associates, Inc.

• Decision Date: 02 February 1968
• Docket Number: No. 11357.,11357.
• Citation: 391 F.2d 130
• Parties: The B's COMPANY, INC., Defendant and Third-Party Plaintiff, Appellant, v. B. P. BARBER & ASSOCIATES, INC., Third-Party Defendant, Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

391 F.2d 130 (1968)

The B's COMPANY, INC., Defendant and Third-Party Plaintiff, Appellant, v. B. P. BARBER & ASSOCIATES, INC., Third-Party Defendant, Appellee.

No. 11357.

United States Court of Appeals Fourth Circuit.

Argued November 10, 1967.

Decided February 2, 1968.

D. A. Brockinton, Jr., Charleston, S. C. (Brockinton & Brockinton, Charleston, S. C., on brief), for appellant.

Kirkman Finlay, Jr., Columbia, S. C. (W. C. Boyd, and Boyd, Bruton, Knowlton & Tate, Columbia, S. C., on brief), for appellee.

Before HAYNSWORTH, Chief Judge, CRAVEN, Circuit Judge, and WOODROW WILSON JONES, District Judge.

WOODROW WILSON JONES, District Judge:

This action was instituted in the United States District Court for the District of South Carolina, Charleston Division, by W. J. McLamb, trading as W. J. McLamb & Son Construction Company, a North Carolina citizen, hereinafter referred to as "McLamb", as a declaratory judgment action against Ruscon Construction Company of Florida, a Florida corporation, hereinafter referred to as "Ruscon", and the appellant, The B's Company, a South Carolina corporation, hereinafter referred to as "The B's Co."

Ruscon entered into a contract with the Beaufort County Water Authority to install two 24-inch water mains under the Broad and Chechessee Rivers, Beaufort County, South Carolina. Ruscon then entered into a subcontract with McLamb, whereby Ruscon would provide the material and McLamb would perform the installation, which subcontract McLamb assigned to The B's Co., the appellant. The plans and specifications for the mains were prepared for the Beaufort County Water Authority by B. P. Barber & Associates, Inc., hereinafter referred to as "Barber", the appellee. After three attempts The B's Co. did not succeed in the installation of the mains and Latex Construction Company, hereinafter referred to as "Latex", subsequently installed them for Ruscon.

McLamb asks the court to determine the rights and obligations of the parties under the subcontract and assignment. Ruscon counterclaimed against McLamb and impleaded McLamb's bonding company for failure to perform the subcontract. The B's Co. counterclaimed against McLamb and cross-claimed against Ruscon alleging that the plans, specifications, and the Armco steel pipe furnished for the job by Ruscon were faulty, inadequate, insufficient, erroneous and unfit for their intended purpose. The B's Co. impleaded Armco Steel Corporation, hereinafter referred to as "Armco", third party defendant alleging in its third party complaint that the steel pipe manufactured by Armco and furnished by Ruscon was faulty. The B's Co., appellant, also named Barber, the appellee, as a third party defendant and alleged in its third party complaint and undertook to prove at the trial before the Judge without a jury, that the plans and specifications prepared by Barber were impossible to perform. This is the issue which was ruled on by the District Judge on the motion by Barber for an involuntary dismissal of the third party complaint at the conclusion of the case of The B's Co. This appeal is from the order of the District Court pursuant to Rule 41 (b) of the Federal Rules of Civil Procedure, 28 U.S.C. A., granting the appellee's motion for an involuntary dismissal because of the failure of The B's Co. appellant, to offer credible evidence to prove impossibility of performance of the contract according to the plans and specifications. The trial judge in his order of dismissal made extensive and detailed findings of fact in accordance with Rule 52(a) of the Federal Rules of Civil Procedure, 28 U.S.C. A.

The basic question raised here is whether or not the District Judge committed error in granting the motion of Barber, the third party defendant at the conclusion of the case of The B's Co. for the involuntary dismissal of the third party complaint under Rule 41(b).

Rule 52(a) requires the District Judge in an action tried without a jury to find the facts specially and state separately his conclusions of law thereon, and provides that these findings of fact shall not be set aside by the reviewing court unless clearly erroneous; and further provides that due regard shall be given to the opportunity of the trial court to judge the credibility of the witnesses. This provision applies to the motion made in this case under Rule 41(b). See Rule 52(a). Palmentere v. Campbell, 344 F.2d 234 (8th Cir. 1965); O'Brien v. Westinghouse Electric Corporation, 293 F.2d 1 (3rd Cir. 1961).

"A finding is `clearly erroneous' when although there is evidence to support it, the reviewing court on the entire evidence is left with the definite and firm conviction that a mistake has been committed." United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 542, 92 L.Ed. 746. Even if this court disagrees with the conclusions reached by the trial judge, this alone is not enough to set the findings aside. Judge Sobeloff said in the case of Jersey Insurance Company of N. Y. v. Heffron, 242 F.2d 136 (4th Cir. 1957):

"* * * While the Court of Appeals has broader powers in reviewing a District Judge\'s findings of fact than in reviewing the findings of a jury * * * it will not disturb his findings merely because it may doubt their correctness. It is required that the Court of Appeals be satisfied that the District Judge is clearly in error before it will set his findings aside * * *"

The appellant, The B's Co. alleged negligence on the part of Barber in the engineering of the job and in the preparation of the plans and specifications. It further contends that Barber warranted the fitness of the plans, specifications, pipe and materials for their intended purpose by furnishing them, and by requiring The B's Co. to rely thereon and adhere thereto. It further contends that the job could not be performed in accordance with the plans and specifications and by using the materials provided and that Barber wrongfully refused to change the plans and specifications when requested to do so by The B's Co. but did approve changes to enable Latex to perform and complete the job. It is argued by appellant that its evidence established these allegations and therefore made out a prima facie case for relief on the third party complaint without the necessity or benefit of drawing the most favorable inferences and that the court should have, at least, required the appellee to go forward with its evidence before granting an involuntary dismissal under Rule 41(b).

The record in this case is voluminous consisting of hundreds of pages of testimony, numerous depositions, exhibits and other documents and a somewhat detailed recital of the testimony is unavoidable.

The project involved in this controversy consisted of the furnishing and constructing of two subaqueous water transmission mains, 24 inches in diameter, under the Broad and Chechessee Rivers, two tidal streams in Beaufort County, South Carolina. The plans and specifications provided for cement lined pipe, but allowed the contractor to select one of three types of pipe: cast iron pipe, steel water pipe with electrically welded spiral or straight seam, or prestressed concrete cylinder pipe. Ruscon's bid, prepared by The B's Co., was based on Armco spiral weld steel pipe because it was considerably less expensive than the other types and Armco gave them a favorable quotation. After the contract was let Armco furnished shop drawings for said pipe in accordance with the plans and specifications. These shop drawings contained miter joints and these were approved by Barber. Armco made the pipe to order in 40-foot sections and lined them with cement mortar flush with the bevel ends of the pipe in accordance with the plans.

The B's Co. proposed the use of the lay barge method of installing the pipe which Barber approved, and began the job of laying the pipe across and under the 7,000 foot Broad River. The lay barge plan consisted of welding two 40-foot lengths of Armco cement lined spiral steel pipe together forming an 80-foot cylinder (termed "double-jointing,") and then welding these 80-foot length cylinders together and laying them successively into the river off of and behind a lay barge, thereby gradually extending the pipe line across and under the tidal river. The B's Co. strapped two of these pipe lines together and proceeded to lower them simultaneously from the barge into a trench on the bottom of the river. When the work progressed about 1200 feet from the shore line and while injecting ballast water into them for submergence, the pipe failed in a welded joint and sank. The pipe was recovered and another effort was made and after about 3000 feet was laid, the pipe failed in a joint and sank again. After the same thing occurred upon the third trial, Ruscon defaulted McLamb and awarded the subcontract to Latex.

The record shows that Latex installed the pipe successfully using an entirely different method than the one attempted by The B's Co. First it dredged a trench across the river deep enough to place the pipe in a reasonably smooth profile and have a minimum of three feet to refill on top of the pipe. This in turn eliminated the necessity of miter joints and the sections of pipe were welded together on the bank of the river into one long cylinder. The pipe was then given an outer coat of concrete for the protection of the pipe and to give it negative buoyancy, thereby eliminating the necessity of using ballast water. The pipe was then pulled across the river into place by a cable attached to a machine on the opposite bank of the river. The job was concluded and the record indicates the water transmission pipe lines are now performing the function for which they were designed.

The B's Co. contends the plans and specifications as prepared and provided by Barber were impossible of performance in several major instances and to prove this it relied upon the alleged changes Barber made to enable Latex to perform the contract. It...