Busch & Latta Painting Corp. v. State Highway Commission

• Decision Date: 03 March 1980
• Docket Number: No. KCD29715,KCD29715
• Citation: 597 S.W.2d 189
• Court: Missouri Court of Appeals
• Parties: BUSCH & LATTA PAINTING CORPORATION, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION of Missouri, Defendant-Respondent.

Page 189

597 S.W.2d 189

BUSCH & LATTA PAINTING CORPORATION, Plaintiff-Appellant, v. STATE HIGHWAY COMMISSION of Missouri, Defendant-Respondent.

No. KCD29715.

Missouri Court of Appeals, Western District.

March 3, 1980.

Motion for Rehearing and/or Transfer to Supreme Court Denied

April 7, 1980.

Application to Transfer Denied May 13, 1980.

Samuel C. Ebling, James E. Robertson, Millar, Schaefer & Ebling, St. Louis, for plaintiff-appellant.

Bruce A. Ring, Chief Counsel, Paul Tochtrop, Asst. Counsel, Jefferson City, for defendant-respondent.

Before DIXON, P. J., and TURNAGE and KENNEDY, JJ.

DIXON, Presiding Judge.

This appeal has its genesis in a contract action brought by plaintiff, Busch & Latta Painting Corporation, a painting contractor, against the Highway Commission. The contract involved was for the painting of the Hannibal Bridge crossing the Mississippi River. Busch & Latta's theory of recovery was that the specifications for surface preparation were ambiguous and that the Commission's inspectors required an excessive amount of sandblasting, prior to the paint application, by reason of the ambiguity, which in turn caused damage by requiring expenditures not contemplated by Busch & Latta in the contract proposal. The jury's verdict was for the defendant Commission.

Busch & Latta's appeal raises issues concerning the argument, instructions to the jury, the admission and rejection of evidence, and the sufficiency of the evidence to support the verdict.

The last issue requires an extensive statement of the evidence. The transcript is in three volumes, and there are are a great many exhibits. Some of the exhibits are extensive compilations of costs, both actual and estimated, by engineers and accountants.

The contract in issue was based upon bids received by the Commission in response to detailed specifications for the work to be performed. Busch & Latta were the low bidders, and their proposal and the bid specifications constitute the agreement. Thus, the written contract, with the exception of the bid price, was written by the Commission.

The dispute between the parties centers on the provisions of the contract relating to the surface preparation of the bridge. Because this specification is central to the dispute, Section "E" is set forth in relevant part as follows:

"All exposed . . . surfaces of metal . . . , shall be cleaned by sandblasting, meeting in all respects the requirements of Steel Structures Painting Council SSPC-SP-6-63 Commercial Blast Cleaning, except that all old paint must be removed and the surface, regardless of starting condition, shall be in the opinion of the engineer, at least equal to the appearance of pictorial Swedish Standard C SA 2 of SIS 05 59 00-1967.

All rust bloom shall be removed by re-blasting before coating and the surface ahead of the coating operation shall be constantly and diligently examined for any traces of rust, oil, grease, or other foreign blemishes not permitted by the blasting specifications."

The requirements of the Steel Structures Painting Council and the pictorial Swedish Standard, referred to in the contract documents above, were in evidence. The requirements of the Steel Structures Painting Council were contained in a publication titled, "Surface Preparation Specifications." "Commercial Blast Cleaning" is defined as follows:

"2. Definition

2.1 Commercial Blast Cleaning is a method of preparing metal surfaces for painting or coating by removing mill scale, rust, rust-scale, paint, or foreign matter by the use of abrasives propelled through nozzels or by centrifugal wheels, to the degree hereafter specified.

2.2 A Commercial Blast Cleaned Surface Finish is defined as one from which all oil, grease, dirt, rust scale and foreign matter have been completely removed from the surface and all rust, mill scale, and old paint have been completely removed except for slight shadows, streaks, or discolorations caused by rust stain, mill scale oxides or slight, tight residues of paint or coating that may remain ; if the surface is pitted, slight residues of rust or paint may be found in the bottom of pits; at least two-thirds of each square inch of surface area shall be free of all visible residues and the remainder shall be limited to the light discoloration, slight staining or tight residues mentioned above. Photographic or other visual standards may be used as provided in the Appendix to modify or further define the surface if specified in the contract. " (Emphasis supplied).

The term, "Pictorial Swedish Standard C SA 2 of SIS 05 59 00-1967," refers to a visual standard as a surface preparation specification. This standard was promulgated by the Swedish Standards Institute in a publication titled, "Swedish Standard SIS 05 59 00-1967."

These visual standards consist of photographic images, in color, of a steel surface which has been sandblasted. C SA 1 is reddish in color and is described as "light blast cleaning." The "C" refers to the prior condition of the steel and describes the surface as one on which mill scale has rusted away but no surface pitting is observable to the naked eye.

C SA 2 is dark grey in color and is specifically described as "Thorough blast cleaning, almost all mill scale, rust, and foreign matter shall be removed." C SA 21/2 and C SA 3 are also grey in color but noticeably lighter and represent progressively cleaner surfaces. The Swedish Pictorial Standards are cross referenced to the requirements of the Steel Structure Painting Council and C SA 2 is supposed to represent a surface after application of a Commercial Blast Cleaning, SS PC SP 6-63, set forth above. C SA 21/2 and C SA 3 refer to more extensive sandblasting described as "near white" and "white metal." The witnesses referred to these pictorial and verbal standards by the common terms, "commercial blast," "near white," and "white metal." It is an undisputed fact by the testimony and from the exhibits that costs increase from "commercial blast" to "near white" and "white metal" in that sequence because of the increase in both time and materials necessary to achieve the level of cleanliness these standards indicate.

The Commission's position is that the language of the surface preparation specification, "except that all old paint must be removed," was to be literally applied. Busch & Latta, on the other hand, contend that the removal of all old paint is conditioned by the exception in the requirements of the Structural Steel Paint Council definition that "slight tight residues of paint may remain," and "at least 2/3 of each square inch shall be free of all visible residues." The Commission position is, in effect, that since the picture standard referred to showed no variation in color, any discoloration was not up to the specification.

The whole difficulty arises because the pictorial standard (C SA 2) is, by definition, a piece of unpainted steel. Thus, more sandblasting was required to attain a uniform appearance of "no paint" than was required to reach the dark grey color shown in the pictorial standard. This resulted, on the job, in requiring the more expensive "near white" or "white metal" degree of sandblasting. In short, the Commission read the specifications so as to eliminate the exception for tight residues and discolorations. Busch & Latta read the specifications as calling for a "commercial blast," which, in the context of the definition referred to in the contract, did not mean a surface which was free of all paint residues and discolorations.

The surface preparation specifications SSPC-SP-6-63, relating to commercial blast cleaning, refer to the use of the visual standards as follows:

"A.8 Photographic standards of comparison may be used to define the final surface condition to be supplied under this specification. For partially rusted mill scale, for completely rusted mill scale, or for completely rusted and pitted surfaces, the appearance of the surface after Commercial Blast Cleaning should correspond with pictorial standards B Sa 2, C Sa 2, or D Sa 2 of SSPC-Vis 1-63T."

Significantly, the following language appears:

"As additional standards become available, particularly for initial surface conditions such as previously painted steel, these may be included by reference in the contract." (Emphasis supplied).

This indicates that the Commission adopted a visual standard that was at war with the verbal standard. C SA 2, the visual standard required by the contract documents, applies (by definition both in the Pictorial Surface Preparation Standards and in the Specifications for a "Commercial Sandblast") only to previously unpainted steel with "completely rusted mill scale." When these conflicting and inappropriate standards of cleanliness were applied to the repainting of the Hannibal Bridge, a classic example of an ambiguity in the application of contract language arises.

This complex recitation of the pertinent parts of the contract documents is essential to an understanding of the testimony developed at the trial. Several experts testified concerning these contract documents. Two of these experts were offered by the plaintiff, and three were experts offered by the defendant Commission.

The plaintiff's expert, Frank Masters, was an electrical engineer. He had worked as a designer, specification writer, draftsman, and inspector in connection with steel structures. In his opinion, the Commission's contract specification required only a "commercial sandblast" as defined by SSPC # 6. He testified that the wording, "all old paint shall be removed," adds nothing to the specification but is included in the definition of a commercial sandblast. He emphasized that if something more than a commercial blast # 6 standard is required such as a white or near white standard that it should be called out specifically. The words, "except that all old paint shall be removed," do not provide a contractual basis for requiring a higher level of blasting.

Plainti...