J. N. Sullivan & Associates, Inc. v. F. D. Chapman Const. Co.

• Decision Date: 13 June 1975
• Docket Number: No. 44549,44549
• Citation: 304 Minn. 334,231 N.W.2d 87
• Parties: J. N. SULLIVAN AND ASSOCIATES, INC., Respondent, v. F. D. CHAPMAN CONSTRUCTION CO., et al., Appellants, LeRoy Winner, et al., Defendants.
• Court: Minnesota Supreme Court

Page 87

231 N.W.2d 87

304 Minn. 334

J. N. SULLIVAN AND ASSOCIATES, INC., Respondent, v. F. D. CHAPMAN CONSTRUCTION CO., et al., Appellants LeRoy Winner, et al., Defendants.

No. 44549.

Supreme Court of Minnesota.

June 13, 1975.

Rehearing Denied July 16, 1975.

Syllabus by the Court

The action of the trial court in granting plaintiff's motion for a directed verdict pursuant to Rule 50, Rules of Civil Procedure, was proper in light of the overwhelming evidence that defendant contractor breached its contractual obligation by constructing a part of a sewer line below the grade required by the plans and specifications.

Thomson, Lovett, Wahlfors & Moran and James L. Wahlfors, Bloomington, for appellants.

Briggs & Morgan, B. C. Hart and Marvin T. Fabyanske, St. Paul, for respondent.

Heard before ROGOSHESKE, KELLY and YETKA, JJ., and considered and decided by the court en banc.

KELLY, Justice.

J. N. Sullivan and Associates, Inc. (Sullivan) initially brought this action against J. C. Chapman Construction Co. (Chapman) and several other defendants to recover damages for breach of contract and negligence. The trial court granted Sullivan's motion for a directed verdict against Chapman and defendant Glens Falls Insurance Company, which had furnished a performance and payment bond for Chapman. We affirm.

In 1967, the village of Circle Pines and Chapman entered into a contract for the construction of a sewer line within the village. Sullivan served as consulting engineers for the village during both the planning and construction of the extensive sewer project, providing inspection and supervision during construction. According to the plans and specifications prepared by Sullivan, it was also responsible for the final approval inspection upon completion. Construction was finished in October 1967 and the village, relying on Sullivan's recommendation, accepted the completed sanitary sewer line.

Beginning in the spring or early summer of 1968, the village began experiencing a sewage backup and flowage problem in the area of manhole 82B of the sewer line that Chapman had constructed. This problem grew continuously worse until the village had to flush out the backup every two or three weeks.

In 1970, Fullivan discovered that it would be necessary to dig up a portion of the sewer line in this area in order to identify and correct the problem. Sullivan contacted Chapman and its surveyor and requested that Chapman do this excavation and subsequent corrective measures at its own expense, which it refused to do.

Sullivan, at its own expense, had a survey crew determine the elevation of the bottoms of manhole 82B and of the upstream and downstream manholes, and then had 168 feet of sewer pipe downstream from the target manhole excavated. The cause of the problem was found to be that the pipe was below the design grade, creating a bend in the line which impeded the flow of the sewage.

After receiving an assignment from the village, Sullivan commenced this action against Chapman, LeRoy Winner, who was the surveyor, Glens Falls, and others for the cost of repairs, alleging negligent construction and failure to construct the sewer line in accordance with the original contract and specifications as required. Following a change of venue and dismissal of two of the defendants, the claims against Chapman and its surveyor wre tried to a jury. During the third day of trial, upon the recommendation of the trial judge and the consent of all parties, testimony was interrupted for the purpose of permitting motions for directed verdict against Chapman on behalf of Sullivan, and against both Chapman and Sullivan on behalf of Winner. Counsel for both Sullivan and Chapman submitted offers of proof in support of their positions. Both motions were granted by the trial judge, and Chapman and Glens Falls appeal from the judgment entered against them.

The only issue on this appeal is whether, in view of all the evidence and offers of proof presented, the trial judge erred in directing a verdict in favor of Sullivan.

It is well settled that a motion for a directed verdict pursuant to Rule 50, Rules of Civil Procedure, presents only a question of law for the trial court regarding the sufficiency of the evidence to present a fact question for the jury to decide. ¹ The test to be applied by the lower court and this court on review is that the motion should be granted only in those unequivocal cases where (1) in the light of the evidence as a whole, it would clearly be the duty of the trial court to set aside a contrary verdict as being manifestly against...