Kahn v. Prahl, No. 52139

• Court: United States State Supreme Court of Missouri
• Writing for the Court: PER CURIAM
• Citation: 414 S.W.2d 269
• Parties: Ernestine KAHN, Plaintiff-Appellant-Respondent, v. William J. PRAHL, d/b/a J. A. Prahl Contracting and Building Co., Defendant-Appellant-Respondent, v. FAIRELL, INC. (Formerly Wabash Drilling Company), Third-Party Defendant-Appellant-Respondnt
• Decision Date: 10 April 1967
• Docket Number: No. 52139,No. 1

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414 S.W.2d 269 Ernestine KAHN, Plaintiff-Appellant-Respondent,
v.
William J. PRAHL, d/b/a J. A. Prahl Contracting and Building
Co., Defendant-Appellant-Respondent,
v.
FAIRELL, INC. (Formerly Wabash Drilling Company),
Third-Party Defendant-Appellant-Respondnt. No. 52139. Supreme Court of Missouri, Division No. 1. April 10, 1967.
Motion for Rehearing or to Transfer to Court En Banc Denied
May 8, 1967.

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Walter S. Berkman, St. Louis, and Roberts P. Elam, Clayton, for appellant, Ernestine Kahn.

Barnard, Timm & McDaniel, St. Louis, for appellant-respondent, William J. Prahl, d/b/a J. A. Prahl Contracting & Building Co.

Heege & Heege, Clayton, for third party defendant-appellant-respondent.

HIGGINS, Commissioner.

Ernestine Kahn, as plaintiff, sued her general contractor, defendant William J. Prahl, doing business as J. A. Prahl Contracting and Building Co., for $50,000 damages for breach of contract; Prahl, as third-party plaintiff, sued his subcontractor, third-party defendant Fairell, Inc. (formerly Wabash Drilling Company), for the amount of any judgment which might be entered against him on plaintiff's petition. A jury found the issues for plaintiff and assessed her damages at $50,000, and the court declared a mistrial. On November 22, 1965, plaintiff moved to set aside the declaration of mistrial and for reinstatement of the verdict and, on December 17, 1965, the court sustained that motion, set aside its declaration of mistrial, reinstated the jury verdict, and entered judgment for plaintiff against Prahl for $50,000 and for Prahl against Fairell in the same amount. Motions for new trial of Prahl and Fairell were sustained and all parties have appealed.

Plaintiff alleged that on September 12, 1957, she, as owner, and Prahl, as contractor, entered into a general contract for construction of an 18-family apartment building in accordance with plans, drawings,

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and specifications prepared by architect Cay Weinel; that she agreed to pay and did fully pay the contract price; that the specifications required that all holes for construction of concrete piles or piers be 'drilled to refusal,' and that the bases of said piles of piers be 'belled' or widened; that such holes were not 'drilled to refusal,' and the piles or piers were not 'belled,' and that Prahl thereby breached the contract; that as a result of the breach, the piles or piers were unable to support their designed building weight, were caused to sink unevenly below the levels to which their holes were drilled resulting in cracking and sagging of walls, tiling, floors, and ceilings in various parts of the building, to plaintiff's damage in the amount of $50,000.

Prahl, in answer, admitted the contract and specifications, denied the alleged breaches, and alleged that all drilling was done in accordance with plans and specifications.

Prahl, as third-party plaintiff, alleged that on September 23, 1957, he, as general contractor, and Wabash, as subcontractor, entered into a subcontract for Wabash to furnish labor and equipment for machine drilling of the pier holes, including belling according to the plans and specifications in the general contract; that if the pier holes were not drilled to 'refusal' and the piers were not 'belled' as required by the plans and specifications, thus rendering Prahl liable to plaintiff, then Wabash, as third-party defendant, was liable to Prahl as third-party plaintiff for the amount of Prahl's liability to plaintiff.

Fairell, in answer to Prahl's third-party petition, admitted that, while known as Wabash Drilling Company, it entered into the subcontract with Prahl, alleged full compliance with the contract, and denied liability to plaintiff or to Prahl.

Ernestine Kahn, aided by her son, Charles Kahn, employed Cay Weined, an architect, to prepare all plans and specifications for an 18-family apartment building to be located on her property at 800 South Hanley Road, Clayton, Missouri. The building was a 3-story and basement, ')' shaped, reinforced concrete, fireproof building, located on the east side of Hanley Road, with the wings or arms of the ')' projecting to the west. A basement garage extended to the west beyond the westernmost wings and was covered with earth for a lawn.

The construction contract, executed September 12, 1957, by Mrs. Kahn as owner and Prahl as contractor, required the contractor to 'furnish all of the materials and perform all of the work shown on the Drawings and described in the Specifications * * * and addenda #1 and addenda #2 prepared by Cay Weinel, Architect, * * * and * * * do everything required by this Agreement, the General Conditions of the Contract, the Specifications and the Drawings' for $400,447.50, not including some 17 items such as air conditioning, plumbing, wiring, fixtures, oak flooring, terrazzo, appliances, etc. The specifications provided: 'All drilling for piles shall be included by the Contractor,' and 'Piles are to be constructed and reinforced in accordance with Engineering Drawings.' Addenda #1 provided: 'The average depth of the drilled piles from the top elevation given on the drawings to the bottom shall be 15 --0 ,' and 'A Unit price per foot shall be given for any additional average depth or credit for lesser depth.' The first floor framing plan in respect to piles provided: '20. Piles to be drilled to refusal.'

The foundation plan was prepared by the architect and by Louis Krasner, a structural engineer. It called for 170 piers or piles to be drilled and provided: 'Unless Noted Otherwise All Piles Under Walls to be 18 with 6--#5 (vert.) #2 ties at 18 c.c. Piles to be belled where shown. Unless indicated otherwise--bells to be 30 . (52 thus) under walls.' The foundation plan also denoted typical 18 piles with no bell by small circles, and typical 18 piles with 30 bells by similar small circle surrounded by a larger concentric circle. Some

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of the piles were shown to be of 24 diameter with 42 bell. The bell at the bottom of the pier or pile is a flaring or broadening of the base to provide additional support. The details section of the foundation plan shows typical exterior wall and garage column sections, with the former carrying the legend: 'See fdn. (foundation) plan for piles to be belled & size of bells.'

By the subcontract between Prahl and Wabash, Wabash agreed to furnish Prahl with 'labor and equipment for machinedrilling foundation piers for Ernestine Kahn Apartment located at 800 South Hanley Road according to plans or directions by Cay Weinel, Architect * * * price ($2380) to include machine-drilling and machine-belling for foundation piers according to plans and specifications and Addendum No. 1.' Unit prices were also stated for 18 and 24 piers.

Prior to letting the general contract to Prahl, plaintiff employed Wabash to perform test drilling and the results were given to Mr. Prahl and to the architect.

The building was completed and ready for occupancy about November 1, 1958. About two and a half months before that, Mr. Prahl observed that one of the piers in the garage underneath the lawn had sunk; it ultimately sank approximately seven inches and the garage ceiling sagged the same amount. At that time, Charles Kahn 'began to notice cracks in nearly every apartment throughout the entire building, cracks in the hall, terrazzo stairways, in the garage, sinking of piers * * *.'

The E. F. David House Moving Company, specializing in moving, shoring and underpinning buildings, was consulted by plaintiff in July or August 1963. Inspection was made by Lloyd M. Davids, a registered engineer. He noted cracks in the brickwork and inner partitions, distortion in the garage ceiling, plaster cracks, and foundation cracks. He found the building 'to be settling as a result of a condition of the subsurface material below the footings,' and concluded 'there was insufficient resistance of the subsoil materials below the footing elevation.' That company recommended and installed 13 concrete piers 'to sustain the walls within certain isolated areas.' The underpinning work was done by hand excavation alongside the sunken piers 'until we encountered subsurface material which in our opinion was sufficient to receive spread concrete footings.' Then 'we proceeded and built a form, poured concrete into the form, and the end result was the compressive load of the column was refused by this pier that was installed in direct compression.' David's hand excavations varied between 5 and 14 feet below the bottoms of the piers drilled by Wabash; ten of such hand excavations were 11 feet or more below the drilled piers; all rested on different material than did the drilled piers. This work cost $8,482.56.

The principal conflict in the evidence went to the meaning of 'drilled to refusal' in connection with whether the drilled piers were 'drilled to refusal,' and whether such piers were 'belled,' all as required by the plans and specifications; and, since plaintiff had a verdict, she is entitled to have the evidence viewed in the light most favorable to her. Christie v. Gas Service Co., Mo., 347 S.W.2d 135, 137 (1).

Eugene Brucker, an engineer, specializing in soil mechanics and foundations, inspected the building's underpinning in 1963 while the E. F. David Company was working there. None of the piers he observed were belled and they 'were not drilled to what we would consider refusal material.' One such pier, located in the northwest corner of the building, rested on a 'yellow, silty clay' and was not 'belled' as required by the plans and specifications. 'One pier in particular was pointed rather than having a flat bottom as normally a pier would be.' Mr. Brucker stated that the term "refusal,' when in reference to the support of a building would be the material which is strong enough to support it.

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