Bator v. Ford Motor Co.

• Citation: 257 N.W. 906,269 Mich. 648
• Decision Date: 11 December 1934
• Docket Number: No. 86.,86.
• Parties: BATOR et al. (TRIX et al., Interveners) v. FORD MOTOR CO. et al.
• Court: Supreme Court of Michigan

269 Mich. 648

257 N.W. 906

BATOR et al. (TRIX et al., Interveners)

v.FORD MOTOR CO. et al.

No. 86.

Supreme Court of Michigan.

Dec. 11, 1934.

Action by Kalman Bator and another against the Ford Motor Company and others, in which John B. Trix and another intervened as plaintiffs. From the judgment, all parties appeal.

Affirmed.Appeal from Circuit Court, Wayne County; Guy A. Miller, judge.

Argued before the Entire Bench.

Jesse Demchak, of Detroit (Slyfield, Hartman, Mercer & Reitz, of Detroit, of counsel; Royal A. Oppenheim, of Detroit, of counsel re right of plaintiffs to sue on contract), for plaintiffs.

Monaghan, Crowley, Reilley & Kellogg, of Detroit (Crawford S. Reilley, of Detroit, of counsel), for defendant Healy.

Raymond J. Kelly, Corp. Counsel, and James R. Walsh, Asst. Corp. Counsel, both of Detroit, for defendant City of Detroit.

Colombo, Colombo & Colombo, of Detroit (George M. Clark, of Muskegon, of counsel), for defendant Ford Motor Co.

BUSHNELL, Justice.

Defendant Ford Motor Company, whose plant covers 1,100 acres located on the River Rouge in the city of Dearborn, desiring to double its power plant capacity, found it necessary to acquire a new source of condenser water supply of from 600,000,000 to 1,000,000,000 gallons of raw water per day, which is nearly double the amount of purified water used by the entire city of Detroit. The method then in use was to take raw water from the river, discharging it at a point below the plant, but, there being very little fall between the two points, the heated water, instead of going down the river to its confluence with the Detroit river, flowed backward to the intake, thus becoming overheated and contaminated. During the summer a maximum temperature of 98 degrees was reached at the intake; water over 75 degrees temperature being practically unfit for condenser purposes.

Plans were prepared for acquiring a permanent and ample supply of water for cooling purposes by means of a tunnel running from the plant, a distance of 12,000 feet to a proposed intake structure near Jefferson avenue, in the city of Detroit, on the old channel of the river; the department of water supply of the city of Detroit was asked to construct the tunnel and supply the water; it being estimated that the cost of the project would be about $2,500,000.

The charter of the city of Detroit, section 17, chapter 12, authorizes the extension of water pipes, aqueducts and mains without the city, but requires that the entire cost thereof shall be paid to the city, and such pipes must become the property of the city. The water board is authorized to determine the rates at which the water shall be sold; such rates, however, not to be more than double the amount charged to inhabitants of the city. The section also includes language which might possibly be construed as having the effect of prohibiting the project, viz.:

The amount of water sold to persons residing outside the city limits shall not exceed twenty-five per cent of the amount furnished within the city.'

Negotiations resulted in arrangements evidently designed to overcome the possibility of the charter restriction. The common council authorized the water board to advertise for proposals and then award the contract for constructing the tunnel to the Ford Motor Company for a nominal sum; upon its completion the tunnel to become the property of the city and a part of its water system. It was to be leased to the company for a consideration of $1 and its maintenance, with the reservation that the city could terminate the lease on two years' notice. Following the preliminary agreement, a formal contract was entered into between the city and the company and performance, labor, and material bonds were executed, the contract sum being $1; all of which was then confirmed by resolution of the common council. The construction contract explicitly stated that any damage to private property should be taken care of to the satisfaction of the owners of said property.

The Ford Motor Company then entered into a contract with defendant Stephen A. Healy, a well-known tunnel contractor, who provided the work and materials for the agreed sum of $2,143,386; Healy by his agreement assuming all risk of damage or injury to person or property wherever located.

Four test pits and about thirty test borings had been made in order to determine the nature and characteristics of the soil; test hole No. 7, opposite plaintiff's property, showing sand 19 feet, soft clay 5 feet, very soft clay from 24 to 44 feet, soft clay from 44 to 77 feet, sand, gravel, and clay from 77 to 96 feet, and stone and gravel from 96 to 98 feet, which resulted in the selection of the shield and upheaval method of construction.

After about 200 feet had been built, defendant Healy says ‘there was quite a bit of settlement.’ The work was stopped and investigations made, resulting in a change in the type of construction from a combination 10-inch wood cant and 25 1/2-inch monolithic concrete lining to that of an 18-inch O'Rourke concrete tunnel block with 18-inch reinforced monolithic concrete lining; no change being made in any other provisions of the contract which provided that ‘The placement of the lining shall follow as closely behind the excavation as practicable. No more tunnel shall be excavated than will be lined within the twenty four (24) hours next succeeding, unless otherwise ordered or permitted.’

The testimony shows that 118 days elapsed between the time the shield passed plaintiff's property and the installation of the lining; the record, however, being silent as to the respensibility for the delay. Construction of the tunnel was begun August 15, 1929, the shield passed plaintiff's property August 30, or September 1, 1930, the lining was installed December 27, 1930, and the whole project was completed in April of 1931.

Plaintiff's property, fronting on the west side of Dearborn avenue on the northwest corner of Harbaugh avenue in the city of Detroit, consists of a two-story solid brick building, with two stores below and apartments above. The building is within about one foot of the front lot line; one-half being erected in 1916 and the remainder in 1928. Plaintiffs Trix are mortgagees of the premises. Dearborn avenue at this point is 66 feet wide and is paved for a width of 40 feet. The tunnel is located in the center of the street, 70 feet below the surface; its outside diameter is 21 feet, it measuring 15 feet inside. The subsoil consists mainly of plastic clay through which the cutting edge of the shield working like a gigantic cookie cutter at a speed of about one inch a minute was forced by 20 hydraulic jacks capable of exerting a shoving pressure of between 3,000 and 4,000 pounds per square inch on the area of each jack. When the cuttings of clay amounting to 12 1/2 cubic yards per lineal foot were being removed through 4 portholes in the bulkhead of the shield, the surface of the ground 70 feet above was raised several inches. After the shield had passed, the soil subsided, immediately automatically back filling around the monolithic slabs placed in the excavation; the downward pressure of the earth being about 5,000 pounds per square foot at the top of the tunnel and about 7,500 pounds at the invert.

The disturbance thus created in the surrounding soil resulted in changing the nature of the plastic clay so that it ceased to act as a solid and became more like a liquid. The ground in the vicinity of the tunnel subsided and continued to move and settle for approximately a year and a half afterwards.

About 23 days after the shield had passed plaintiff's property, show windows of the building started to crack, breaks appeared in the walls, and a sewer or water pipe was broken in the basement. Defendants' witness who later measured the settlement testified that the building settled 3 1/8 inches at the northwest corner, 2 7/8 inches at its front center, 7/8 of an inch 20 feet from the southwest corner, 1/4 inch 52 feet from the front line, and 3/16 of an inch at the west rear corner.

The city's department of buildings and safety engineering served notices to ‘rebuild and place in safe condition all sections of walls where cracks appeared and provide adequate underpining down to solid ground for the front wall of the building and place same in a safe condition.’ Plaintiffs were required to shore up the front portion of the building in order to prevent failure or collapse. Counsel for defendants and some of their expert witnesses conceded that such an excavation cannot be done without a disturbance and settlement of the adjoining soil.

Prof. Housel of the Engineering Department of the University of Michigan, who was qualified as a soil expert by the defendants, claimed that the shield method was a proper one and in accordance with good engineering practice, and that in his opinion there is no method known in engineering which has been successful in preventing subsidence under conditions similar to those encountered on the Ford tunnel. Defendant Healy said that out on Dearborn avenue a tunnel could not be constructed without damage to some of the buildings because of their character, type, and age. Defendants' witness Spencer, an experienced foundation contractor, on direct examination stated that: ‘The particles of clay, as they exist in nature, are not in contact with each other. They are held apart by water, and the forces of the water push the little particles of clay apart. There is also in this mass what is called a colloidal action, which makes the entire mass cemented by a jelly-like material, which makes clay appear to be the soft clay, appear to be like a jelly. As long as the material is left alone, that material acts as a solid. As soon as there is a pressure on it, the little particles of clay can move around in this bath of water, and the colloids re-distribute themselves, and when the pressure is on this entire mass it acts like a fluid. That is what...