Campbell Const. Engineers, Inc. v. Water Works and Sewer Bd. of City of Prichard, Alabama, Inc.

• Decision Date: 13 February 1974
• Citation: 52 Ala.App. 129,290 So.2d 194
• Parties: CAMPBELL CONSTRUCTION ENGINEERS, INC. v. The WATER WORKS AND SEWER BOARD OF the CITY OF PRICHARD, ALABAMA, INC. v. MARSHALL DURBIN AND COMPANY OF MOBILE, INC. Civ. 229, 229--2.
• Court: Alabama Court of Civil Appeals

Page 194

290 So.2d 194

52 Ala.App. 129

CAMPBELL CONSTRUCTION ENGINEERS, INC. v. The WATER WORKS AND SEWER BOARD OF the CITY OF PRICHARD, ALABAMA, INC. v. MARSHALL DURBIN AND COMPANY OF MOBILE, INC.

Civ. 229, 229--2.

Court of Civil Appeals of Alabama.

Feb. 13, 1974.

Tonsmeire & McFadden, Ray G. Riley, Jr., John W. Parker, Mobile, for third party appellant Campbell Construction Engineers, Inc.

George E. Stone, Jr., Mobile, for appellant and third party appellee, The Water Works and Sewer Board of the City of Prichard, Ala., Inc.

Louis E. Braswell, Mobile, for appellee, Marshall Durbin & Company of Mobile, Inc. HOLMES, Judge.

Appellee, Marshall Durbin and Company, hereinafter called Durbin, brought this suit for damages in the Circuit Court of Mobile County, Alabama, against the appellant/third-party appellee, Water Works and Sewer Board of Prichard, hereinafter called Water Works. Water Works brought a third-party suit for damages against the third-party appellant, Campbell Construction Engineers, Inc., hereinafter called Campbell.

The lower court heard the cause without a jury and entered a judgment in favor of Durbin and against Water Works in the amount of $7,500. The court also entered a judgment in favor of Water Works and against Campbell in the amount of $7,500.

Both Water Works and Campbell appealed. Water Works waived the filing of assignments of error against Durbin and that judgment is therefore affirmed.

Campbell presents to this court nine assignments of error to the effect that the lower court erred in overruling Campbell's demurrer to Water Works' complaint as last amended; that it was error for the trial court to grant Water Works' motion to strike Campbell's plea number five; that it was error to overrule Campbell's motion for a new trial; that the lower court erred in overruling Campbell's objection to a question asked of one of Water Works' witnesses; and, that it was error for the lower court to render judgment in favor of Water Works and against Campbell.

The case arises from foreign matter being found in the water of Durbin's plant on August 15, 1967.

Tendencies of the evidence reveal the following:

Appellee-Durbin was engaged in the chicken processing business. Such operation requires a great deal of water which is used in practically all aspects of the processing procedure, and appellee had discussed his plant's requirement with the Water Works and Sewer Board of the City of Prichard. The city agreed to furnish water and provide it in a manner suitable for use by the appellee.

On the morning of August 14, 1967, it was discovered that the water being used by the plant and supplied by the city contained sand, and, according to some witnesses, a 'reddish' color of water and/or foreign material, appearing to be 'rust-like.' The sand and other material contaminated the chickens being processed and the United States Department of Agriculture Inspection Service shut down the plant because of the contamination. As a result, there was no production of saleable, consumable chickens on that day.

After production was stopped, the fire hydrant in front of appellee's plant and all sources inside the plant were opened and allowed to run in order to flush out the sand.

Appellee-Durbin presented an itemization of damages which it suffered as a result of the shutdown.

The principal question at trial was the origin of the sand. Was it already in the system, or did it get into the system through the new line which Campbell laid?

Campbell had previously entered into a contract with Water Works to lay a 12-inch pipeline approximately a mile and a half long which would provide more water for Durbin as well as boost the water pressure over the entire city of Prichard. Several procedures are required once the pipe is laid, including removing the air, hydrostatic test, chlorination and flushing.

During a hydrostatic test of the line by Campbell, under 150 pounds of pressure per square inch, a blow-out occurred. There was testimony that a piece of pipe about six inches by ten inches had blown out of the top of the pipe, that there was a hole in the ground, and water was coming out. The water was pumped out of the hole and the faulty section of pipe was cut out, removed, and a new piece installed. The hydrostatic test was started over again by Campbell.

Water Works contends that sand got into the pipeline after the blow-out or during replacement of the faulty section; and that the line was not properly flushed afterwards, resulting in the sand problem at appellee's plant.

Campbell urged at trial that the sand and foreign material was already in the system. They presented evidence that a build-up of minerals occurs in water lines called tuberculation or 'crud' whereby matter accumulates and, due to too much iron, red water occurs or rustlike matter accumulates.

The assignments of error presented for our review, as noted earlier, may be broadly categorized as either pleading questions or evidentiary questions.

Campbell's assignments of error 1, 4, and 5 urge that the lower court erred in overruling its demurrers to Water Works' complaint as last amended. Campbell contends that Water Works insufficiently alleged breach of contract in its third-party complaint. It argues that Water Works made the statement in each of the four counts of the amended complaint, that a copy of the contract referenced therein was attached, and that Water Works failed to attach a copy of said contract. As a result, Campbell contends the complaint, standing alone, fails to state a cause of action.

Campbell urges that when a complaint does not state a cause of action without the aid of an exhibit not actually appended thereto, the complaint and each count thereof is subject to demurrers.

Pertinent parts of Water Works' complaint as last amended are as follows:

'COUNT THREE

'Defendant and third-party Plaintiff claims of third-party Defendant the sum of Seven Thousand Five Hundred dollars ($7,500) as damages for this, and heretofore, on, to-wit, the 7th day of April, 1967, third-party Defendant, entered into a written contract with Defendant and third-party Plaintiff, which such contract is in writing, is designated as project 306--P, is attached hereto, hereby referred to, and under and by the terms of which, third-party of (sic) Defendant agreed with Defendant and third-party Plaintiff to undertake and perform certain actions relative to laying water lines in and about the City of Prichard, Alabama, and for a valuable consideration did attempt to lay and install said water lines, including a water line or lines leading to the processing plant of Plaintiff; that under the contract herein referred to third-party Defendant agreed with Defendant and third-party Plaintiff to provide suitable water line or lines for the carrying or transportation of potable water to customers of Defendant and third-party Plaintiff; and third-party Plaintiff and Defendant alleges that Plaintiff was on, to-wit, the 14th day of August, 1967, while said contract was still in full force and effect, a customer of Defendant and third-party Plaintiff, and that at such time, and while said contract was still in full force and effect, third-party Defendant failed or refused to install or provide such water line or lines for the supply of potable water to the customers of Defendant, including Plaintiff, a customer of Defendant at that time, and that as a proximate result and consequence thereof, water which was not potable, but contained deleterious foreign substances was furnished by third-party Defendant to the customer of third-party Plaintiff Defendant, the Plaintiff, with the proximate result and consequence that such foreign deleterious substances contained in such water damaged Defendant and third-party Plaintiff as follows: that the customer, Plaintiff, of Defendant and third-party Plaintiff allegedly lost many hours of its normal operations, was required to have its products inspected, lost many pounds of poultry lost numerous tons of ice, was required to inspect, repair and clean its equipment and machines used in its operations and damages by said water furnished by third-party Defendants, and lost profits and good will from its, Plaintiffs, customers; that it was required to pay employment wages to employees unable to work due to work stoppage, to clean numerous chickens or the poultry as a consequence of said foreign deleterious substances in said water, all as the proximate result thereof suit in the amount of Seven Thousand Five Hundred dollars ($7,500) was brought by Plaintiff against Defendant and third-party Plaintiff; wherefore Defendant and third-party Plaintiff asks damages against third-party Defendant for such breach of contract heretofore referred to and claims damages in the amount of Seven Thousand Five Hundred dollars ($7,500).'

The initial question presented is whether the complaint without the contract attached sufficiently alleged breach of contract. We particularly note that if a count sufficiently states a cause of action without an exhibit made a part thereof by reference, it is not subject to demurrer on the grounds that the exhibit is not actually appended thereto. Columbia Motors Co. v. Williams, 209 Ala. 640, 96 So. 900.

We hold that the failure to attach the contract itself was not fatal since Count Three of the complaint sufficiently alleged a cause of action for breach of contract, and was not demurrable. All that is required, in this instance, in order that a complaint withstand a demurrer, is that the complaint set forth the essential terms of the contract with reasonable precision and with such certainty and particularity as to acquaint and apprise defendant in what particular he has failed to perform. Tennessee Coal, Iron & Railroad Co. v. Sizemore, 258 Ala. 344, 62 So.2d 459; Woodward Iron Co. v. Frazier, 190 Ala. 305, 67 So. 430; Hart v. Bludworth, 49 Ala. 218; Public National Life Insurance...