Hendrie v. Board of County Com'rs of Rio Blanco County

• Decision Date: 12 November 1963
• Docket Number: No. 20055,20055
• Citation: 153 Colo. 432,1 A.L.R.3d 861,387 P.2d 266
• Parties: , 1 A.L.R.3d 861 John G. HENDRIE, Aetna Casualty and Surety Company, and John G. Hendrie Company, Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF RIO BLANCO COUNTY, Colorado, Defendant in Error.
• Court: Colorado Supreme Court

Page 266

387 P.2d 266

153 Colo. 432, 1 A.L.R.3d 861

John G. HENDRIE, Aetna Casualty and Surety Company, and John G. Hendrie Company, Plaintiffs in Error, v. The BOARD OF COUNTY COMMISSIONERS OF RIO BLANCO COUNTY Colorado, Defendant in Error.

No. 20055.

Supreme Court of Colorado, In Department.

Nov. 12, 1963.

Rehearing Denied Dec. 23, 1963.

Fugate, Mitchem, McGinley & Hoffman, Hindry, Erickson & Meyer, Denver, for plaintiffs in error.

Robert Delaney, Kenneth Balcomb, Glenwood Springs, for defendant in error.

SUTTON, Justice.

This is primarily a case relating to the proximate causation of damage to a swimming pool constructed under contract by the John G. Hendrie Company for defendant in error in Rangely, Colorado. We shall refer to the parties by name or as they appeared in the trial court.

The Commissioners sued both the Hendrie Company and John G. Hendrie individually. Hendrie held the franchise for Paddock Swimming Pools and was joined because he had assertedly acted in both his personal and corporate capacities in the transaction. No material error is claimed here as to this point and both of them will be referred to as 'Hendrie' wherever appropriate. The Aetna Casualty and Surety Company was joined as surety on the performance bond. Other parties were joined in the trial court and were dismissed on motion and they are not involved in this writ of error.

The principal problem, shorn of its many and devious ramifications, running through 2799 folios and numerous exhibits, is whether there is evidence to sustain the liability of Hendrie as determined by the judgment of the trial court. If liability is upheld, then subsidiary issues involving the measure of damages, the question of whether there can be interest on the claim before judgment, and liability vel non of the surety must be resolved.

The controversy arose as follows: In 1955 the Commissioners, pursuant to statute (C.R.S. '53, 114-2), appointed a joint recreation committee for the towns of Rangely and Meeker. The objective was to procure the construction of public swimming pools in both communities. Sufficient funds being available for only one pool of sufficient size it was decided to build it in Rangely.

Hendrie, as well as other contractors, conferred with the Committee about the project. Following thorough investigation of the problem and consideration of the types of pools available, the Committee decided to use specifications and designs for a gunite type concrete pool. Bids were called for and Hendrie was the sole and successful bidder.

A major problem, well known to both Hendrie and the Committee was the fact that much of the soil at Rangely is very hazardous to build on, the evidence being that the soil at the pool site consists of up to forty feet of sandy and clayey silt with occasional thin lenses of silty sand and gravel. The silt is dry, porous and firm in its natural state but when wetted it becomes soft and compressible due to a water soluble sulphate. This unstable element apparently goes into solution when water is applied to it, destroying its solidity.

It appears that Hendrie, with knowledge of the soil problem, nevertheless represented to the Committee (which incidentally was the agent of the Commissioners) that a gunite pool, as he would construct it, would withstand the particular soil conditions. In fact he gave a separate ten year written warranty against defects due to leakage and cracking due to material and workmanship, in addition to his general contract warranty.

During the contract negotiations some changes were ordered by the Committee. Two of the changes should be mentioned for they relate to the construction problem involved here. The first is that some of the copper piping was changed to plastic pipe. The second is that the gunite was increased from four to six inches in order to better protect against the soil condition. Also, during the course of construction a few changes, not related to the problem at hand, were ordered in the plans and specifications by the two Committee representatives who were constantly checking on the work. The contract itself in one part provided that the owner (i. e. Commissioners) was to be responsible for among other things 'underground and surface water, filled ground exceeding three feet, hard formation requiring for its removal the use of pneumatic hammers or blasting, or other unknown obstructions or unknown soil conditions.'

The pool area was levelled by the county, the pool built and paid for in 1956.

Use of the pool after its dedication on August 12, 1956 until it was closed for the winter in September 1956 was evidently satisfactory. Hendrie proposed to winterize it; however, the county chose to employ local labor for this work. Hendrie furnished some material and instructions on how the work was to be done.

The process of winterizing required that the pool be drained and the pipes cleared of water. In order to do this, the water was drained from the pool and air pressure applied to drain the pipes. The machine used for this was supplied by a local firm, and pressure of 100 pounds p.s.i. was used. The pipes were then plugged and the pool refilled. It remained in this condition until the late spring when arrangements were made to reopen it. It was then discovered that during the winter a plug in a pipe running between the main pool and the wading pool had fallen out, allowing water to enter the pipe, which froze and caused the pipe to shatter. This was corrected and the pool put into operation.

As the summer advanced a problem developed with circulation of the water and another leak in the pipes was discovered and corrected. By the first of August 1957 the lifeguard noticed that the pool was losing too much water. The Committee ordered the pool drained and cracks in the structure were discovered. These defects were located at the south-east end of the pool, on both the bottom and one side. On August 11, 1957 Hendrie was contacted and informed of the difficulty. He sent a supervisor to Rangely who broke into the concrete on the sides and discovered a leaking pipe, but it was impossible to tell whether he had broken the pipe himself or if it had been in that condition before.

The parties met to discuss what steps should be taken. Hendrie stated that he would repair the pool, but the Commissioners would have to pay for the material. The Commissioners then retained the services of an engineering firm which in turn examined the pool to see why it was leaking and had soil tests made. The firm's recommendation was that the pool be removed and replaced by a different type of construction which was done. The main basis for this advice was that the condition of the soil required that this type of structure be placed on caissons so that moisture in the ground would not cause settling.

This action was brought to recover the cost of the new pool. Trial was to the court. The two principal witnesses for the plaintiff were the men from the Recreation Committee who had supervised the work on the pool. The substance of their testimony was that the pipes used by Hendrie broke and permitted water to get under the pool, which caused the soil to dissolve and the pool to crack. They stated that Hendrie had represented to them that the plastic pipes were fit for the job and that the gunite construction of the pool would resist cracking even under the most adverse conditions. In addition, they asserted that Hendrie had not installed a hydrostatic relief valve called for in the contract which would have prevented water from accumulating under the pool. One of these witnesses, William Elm, was a plumber by trade and stated that the condition of many of the pipes showed that they had been poorly 'sweated', which meant that they could have leaked at the joints. It should also be noted that when the original pool was removed the soil under where it is alleged these pipes leaked was found to have dissolved in places. It was asserted that this condition caused the settling and cracking of the pool structure.

The two chief witnesses for Hendrie were Ray Smith, who supervised the installation of the pool for his company, and Professor James O. Ball, an engineer from the Colorado School of Mines. Smith testified that during the course of the construction of the pool the plumbing system had been tested and the pipes had not leaked. In addition, when he went to the pool in the spring of 1957 a considerable amount of water had collected around it, as it had been a wet winter and the drainage in the area of the pool was poor. He stated that a ditch had been dug by the county in the area of the pool for the purpose of drainage, but in...