Board of Ed., School Dist. 16, Artesia, Eddy County v. Standhardt

• Decision Date: 15 September 1969
• Docket Number: No. 8699,8699
• Parties: The BOARD OF EDUCATION, SCHOOL DISTRICT 16, ARTESIA, EDDY COUNTY, New Mexico, Plaintiff-Appellee, v. Frank M. STANDHARDT and the Flintkote Company, a corporation, Defendants- Appellants, v. HAMILTON ROOFING COMPANY, a Copartnership, Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 795

458 P.2d 795

80 N.M. 543

The BOARD OF EDUCATION, SCHOOL DISTRICT 16, ARTESIA, EDDY

COUNTY, New Mexico, Plaintiff-Appellee, v. Frank M. STANDHARDT and the Flintkote Company, a corporation, Defendants- Appellants, v. HAMILTON ROOFING COMPANY, a Copartnership, Defendant-Appellee.

No. 8699.

Supreme Court of New Mexico.

Sept. 15, 1969.

William J. Heck, Hobbs, for Flintkote Company

Atwood, Malone, Mann & Cooter, Robert A. Johnson, Roswell, for Frank M. Standhardt.

McCormick, Lusk, Paine & Feezer, Jay W. Forbes, Carlsbad, William M. Siegenthaler, Artesia, for plaintiff-appellee.

Frazier, Cusack & Schnedar, Roswell, for defendant-appellee.

OPINION

WATSON, Justice.

On June 18, 1958 the Board of Education of School District No. 16, Artesia, Eddy County, New Mexico, employed Frank M. Standhardt as the architect to prepare plans and specifications and to supervise the construction of the Abo Elementary School which was to have the necessary protective characteristics against 'nuclear fallout.' After a modification of the plans, the roof was constructed from twelve (12) separate slabs of concrete which had (man-made) cracks along the sides where the separate pours abutted one another. The waterproofing compound made by The Flintkote Co. failed to stop the leaks from precipitation in these joints. Leakage was discovered on or about April 24, 1962, on which date the building was accepted by the Board subject to correction of this defect. The defect not having been corrected, the Board originally brought suit against W. R. Bauske, the contractor, and the U.S. Fidelity and Guaranty Company, his surety, on July 3, 1963.

On November 1, 1963 an amended complaint was filed joining Hamilton Roofing Company, the applier of the waterproofing compound, Standhardt, and Flintkote. On January 21, 1966 orders based upon voluntary dismissals of the action were filed by the plaintiff dismissing Flintkote and Hamilton. On April 14, 1966, the court granted Standhardt's motion to file a third party complaint against Flintkote and Hamilton and the same was filed on the same date. Thereafter, and on July 17, 1967, a third amended complaint was filed by the Board against all of the defendants including Flintkote and Hamilton, and on September 8, 1967 Standhardt filed an answer to this third amended complaint and a cross-claim against Flintkote and Hamilton.

Trial was had without a jury on the pleadings thus finalized which resulted in a dismissal of plaintiff's action against Bauske, the surety company, and Hamilton. Judgment in the amount of $34,600 with interest at six per cent from April 24, 1962 was awarded the plaintiff against Standhardt and Flintkote jointly and severally, and Standhardt's cross-claim against Hamilton and Flintkote was dismissed. The dismissal of the cross-claim against Flintkote, however, was without prejudice and in Conclusion of Law No. 23 the court stated:

'The court does not intend, however, to pass upon any rights of either Standhardt or Flintkote under the New Mexico Uniform Contribution Among Tortfeasors Act.'

Standhardt and Flintkote have appealed from this judgment.

Standhardt claims error under five points, the first of which is that the court's Finding No. 16 does not support the court's Conclusions of Law Nos. 4, 5, and 6. Finding No. 16, to which Standhardt does not object, reads:

'16. Defendant Standhardt failed to specify a ten-year guaranteed roof over the slab area (being the main structure of the Abo School and covering approximately 28,800 square feet) and did not advise the plaintiff of this fact, and plaintiff had no knowledge of the lack of this provision until November of 1966; that defendant Standhardt deliberately omitted to provide for a roof guarantee over this area, it being his position this area was not a 'roof,' and that the one-foot hydrostatic head specification apparently sufficiently protected plaintiff.'

The court's Conclusion of Law No. 4 (set forth hereafter) does not specifically refer to the failure to specify, or the omission to advise, about the ten-year guaranteed roof. By Conclusion of Law No. 5, however, Standhardt's failure to provide for a ten-year guaranteed roof in the plans and specifications was deemed negligence, and a basis for judgment, and Conclusion No. 6 held that Standhardt's failure to advise the Board of this omission in the plans was a breach of his duty and a basis for judgment.

It is appellant Standhardt's contention that since the failure in the waterproofing was discovered prior to the acceptance of the school building and even before the one-year warranty period provided for in the contract documents began to run, there could be no proximate cause between these acts of negligence and plaintiff's loss.

Appellant Standhardt was not prejudiced by Conclusions of Law Nos. 5 and 6 as the judgment was fully supported by the findings of the court to the effect that the plans and design for waterproofing of the roof were defective. To remand this cause to the district court for it to retry and reconsider the matter of the ten-year guarantee would be an empty ceremony; the results would be the same. State v. Stapleton, 48 N.M. 463, 152 P.2d 877 (1944) and Southern California Petroleum Corporation v. Royal Indemnity Co., 70 N.M. 24, 369 P.2d 407 (1962). If the final judgment herein is correct, this error claimed by appellant Standhardt is harmless. Evans v. Evans, 44 N.M. 223, 101 P.2d 179 (1940). Douglass v. Mutual Ben. Health and Accident Ass'n., 42 N.M. 190, 76 P.2d 453, 467 (1937).

Appellant Standhardt under its Point II claims error in that the court predicated liability against him, the architect, in part at least because of his failure to properly supervise the construction. The court's Conclusion of Law No. 4 reads as follows:

'4. As evidenced by competent testimony from expert witnesses, defendant Standhardt did not fulfill his contract with plaintiff in that he failed to use the ordinary skill and care usually exercised by architects in New Mexico in the preparation of the plans, specifications and working drawings, and in the supervision of the construction of the Abo School; the plans, specifications and drawings were faulty in design and insufficient for the purpose intended, and the supervision was insufficient and neglected, insofar as the slab roof and general waterproofing over the main structure was concerned, since the same is not impervious to the elements and acts of nature and has leaked precipitation since its completion and still continues to do so; and, by reason thereof, plaintiff should have judgment against the defendant Standhardt.'

Appellant Standhardt contends that since the court found that defendant Hamilton, the applier of the waterproofing material, and defendant Bauske, the general contractor, strictly complied with the plans and specifications and were not negligent, how could his failure to supervise the construction be material and be the proximate cause of plaintiff's loss.

We do not believe that that portion of Conclusion No. 4 above quoted relating to supervision is necessarily inconsistent with the findings of satisfactory compliance on the part of the contractor and the waterproofing applier. Had Standhardt exercised proper supervision he might well have detected faults or deficiencies in his own plans or specifications and thus would have been in a position to remedy them before it was too late. Conclusion No. 4, insofar as it may contain an ultimate finding, is supported by substantial evidence and can thus be reconciled consistently with the other findings. It is our duty to indulge every presumption in favor of the correctness of the judgment. Heine v. Reynolds, 69 N.M. 398, 367 P.2d 708 (1962); cf. Morris v. Merchant, 77 N.M. 411, 423 P.2d 606 (1967). We will not undertake to search the mind of the trial court to determine exactly his approximation of how the failure to supervise contributed to the loss. Consolidated Placers, Inc. v. Grant, 48 N.M. 340, 151 P.2d 48 (1944).

By his Point III Standhardt claims the court erred in dismissing his cross-claim against Flintkote, because he is entitled to indemnity from Flintkote under the facts found. No reason was specified by the lower court for the dismissal of the cross-claim. It was dismissed without prejudice, however, and we can only assume, therefore, that the court did not rule on the merits of Standhardt's claim of indemnity.

The trial court may have concluded that Standhardt's third-party complaint against Flintkote was premature because Standhardt had made no payment on the judgment. See 42 C.J.S. Indemnity § 25 (1944). Such might well be a condition to the judgment, but would not be grounds for a dismissal of a cross-claim or a third-party complaint for the recovery of either indemnity or contribution. We believe Rules 13(g) and 14 (§ 21--1--1(13)(g) and (14), N.M.S.A. 1953 Comp.) permit the determination of such claims although a money judgment for indemnity must be subject to cross-claimant's actual loss, and a money judgment for contribution would be subject to the conditions of § 24--1--12(2), N.M.S.A. 1953 Comp. 3 Moore's Fed. Practice § 13.34 and § 14.08 through 14.10; Marcus v. Marcoux, 41 F.R.D. 332 (D.R.I.1967); Jackson & Church Div., York-Shipley, Inc. v. Miller, 414 S.W.2d 893 (Ky.1967); Lommori v. Milner Hotels, 63 N.M. 342, 319 P.2d 949 (1957). Compare Rio Grande Gas Co. v. Stahmann Farms, Inc., (decided July 28, 1969) 80 N.M. 432, 457 P.2d 364, where we held dismissal was proper because a settlement had been made by the complaining joint tortfeasor without extinguishment of the obligation of the other joint tortfeasor as required by § 24--1--12(3), N.M.S.A. 1953 Comp.

Under Points V and IV appellant Standhardt asserts error in the amount of the judgment and in the allowance of interest on the judgment.

Appellant Standhardt challenges the court's Finding No. 40 which held that the reasonable value of labor and...