Kansas City Bridge Co. v. State

• Decision Date: 09 October 1933
• Docket Number: 6370.
• Citation: 250 N.W. 343,61 S.D. 580
• Parties: KANSAS CITY BRIDGE CO. v. STATE.
• Court: South Dakota Supreme Court

250 N.W. 343

61 S.D. 580

KANSAS CITY BRIDGE CO. v. STATE.

No. 6370.

Supreme Court of South Dakota

October 9, 1933

Original action by the Kansas City Bridge Company against the State of South Dakota.

Judgment in accordance with opinion.

Cherry Davenport & Braithwaite, of Sioux Falls, for plaintiff.

The Attorney General, for the State.

RUDOLPH Presiding Judge.

This action was commenced under the provisions of section 2109, Rev. Code 1919, to recover on ten so-called "extra bills" claimed to be due the plaintiff arising out of the construction of the Wheeler Bridge across the Missouri river. The plaintiff filed its complaint, and thereafter certain other proceedings were had; but it is agreed by counsel that at this time the matter is before this court for the purpose of determining whether the complaint states a cause of action as to all or any of the separate "extra bills," upon which the complaint is based.

The complaint sets forth ten "extra bills," upon which recovery is sought. These "extra bills" are numbered 1 to 6, inclusive, and 9 to 12, inclusive. Extra bill No. 1 is based upon the following alleged facts: The contract for the construction of the Wheeler Bridge was awarded to the plaintiff by the highway commission of the state of South Dakota on October 13, 1923; at that time the plaintiff was ready, able, and desirous of immediately commencing the work of construction, but, because of the negligence and omission of the highway commission in failing to formally sign and execute the contract, and in failing to obtain the approval for the construction of said bridge by the Department of War, which was necessary, the plaintiff was delayed for a period of thirty-five days in commencing its operations in constructing the bridge. In connection with the bridge construction it was necessary that the plaintiff company build a temporary trestle or tramway out into the river. On March 15th, following the commencement of the work the ice in the Missouri river broke up, and this temporary trestle or tramway was destroyed by the action of the river which caused the company a loss of $10,628.57. The complaint alleges that, had it not been for the delay of the state engineer and the state highway commission in executing the contract and securing the consent of the Secretary of War for the construction of the said bridge, the plaintiff would have had plenty of time to accomplish the work necessitating the temporary trestle or tramway, and could have removed the same from the river before the ice went out and destroyed it.

Extra bill No. 2 is based upon the following alleged facts, which are in the statement submitted to the highway commission as follows:

"Prior to the time when the ice went out March 5, 1924, the weather indicated that we might expect something like this to happen. We, therefore, sought the advice of the resident engineer as to what should be done with the steel cofferdam driven at Pier No. 3. The resident engineer advised us to leave the cofferdam, which we under stood as relieving us from responsibility as to its safety."

"The ice, in going out, ruined the cofferdam, necessitating our rebuilding same."

It is sought to recover $3,546.42 on account of extra bill No. 2.

Extra bill No. 3 is based upon the following alleged facts: The state bridge engineer sent out a circular representing that gravel satisfactory for concrete to be used for the bridge could be obtained for a cost at the bridge of not to exceed $3.50 per cubic yard. We quote the following from the statements submitted by the plaintiff to the state highway commission covering this extra bill No. 3:

"Upon investigation it was decided that the material specified would not be satisfactory and we were forced to go to a point about five miles from the bridge and pick up granite boulders, install a crushing plant and crush this material for use in concrete."

"The crushing and hauling of the rock constituted a very large increase in the cost of this material. The nearest point where sand could be obtained was between 10 and 11 miles away and it was necessary for us to pay 30¢ per cubic yard for the sand, besides our doing the stripping and hauling. This caused a large increase in the cost of sand material.

"These increases were all caused by misinformation received from the State Engineer's office."

It is sought to recover $8,327.21 on account of extra bill No. 3.

Extra bill No. 4 is based upon the following statement of facts submitted by the plaintiff to the state highway commission: "The plan submitted to us on which we based our estimate showed that the cylinders would be landed on shale. Inside of the cylinder were to be driven, with a pile driver outfit, H beams. When this excavation was made it was discovered that rock was encountered instead of shale, and instead of driving the H beams it was necessary to excavate holes in the rock at a very large increase in cost to us." It is sought to recover $2,116.92 on account of extra bill No. 4.

Extra bill No. 5 is as follows: "Extra expense caused by having to make excavation in bottom of cylinders through rock instead of shale, as shown on plans. When cylinders were sunk to solid foundation it was discovered that rock existed instead of shale. It was impossible for us to sink the cylinders into this rock in such a way that the bottom would be sealed to prevent water from leaking in so that the cylinders could be pumped out, as we had planned to make excavation in shale." It is sought to recover $2,303.23 on account of extra bill No. 5.

Extra bill No. 6, as alleged in the complaint, and as submitted to the state highway commission by the plaintiff, is as follows:

"The soundings shown on plan at Pier No. 7 were not correct. It was necessary in sinking these tubes to do a very much larger amount of earth excavation than was anticipated.

"Agreement was made between our superintendent and the State Bridge Engineer that this extra material would be paid for by the State.

"Original elevation of shale was shown on plan as elevation 816.52. The actual elevation of shale (Niobrara) was found at elevation 811.71 and 812.36 for upstream and downstream tubes respectively, about four feet deeper than anticipated. We had difficulty in keeping out water and sand at this added depth. A great amount of material from outside the tubes came in under the tubes and had to be removed."

It is sought to recover $15,400 on account of extra bill No. 6.

Extra bill No. 9, as shown by the statements submitted to the highway commission, is as follows: "This claim is for the expense of constructing a temporary road built by this company before ground was frozen too hard for grading and in order to establish a camp and be ready to begin work as soon as right of way was secured." It is sought to recover $327.19 on account of extra bill No. 9.

Extra bill No. 10, as submitted to the highway commission, is as follows: "When it was found necessary to obtain the crushed rock at a point about five miles from the bridge, it became necessary for us to grade, drag and maintain a road, culverts and bridge between the rock crushing plant and the bridge site in order that the crushed rock could be hauled." It is sought to recover $1,211.10 on account of extra bill No. 10.

Extra bill No. 11 has been disposed of by the parties.

Extra bill No. 12 is based upon the alleged fact that the state withheld from the final estimate the sum of $2,662.29 for engineering expense incurred during the period after which it was stipulated in the contract the bridge should be completed, and the time when the bridge was finally completed and accepted.

The funds available for the payment for the Wheeler Bridge were raised under the provisions of chapter 128, Laws 1921. This law is as follows: "The Tax Commission is authorized and directed to levy annually a tax of one tenth of a mill upon the assessed valuation of all taxable property in the State, to provide a special fund in the State Treasury to be known as the State Bridge Fund. All moneys received by the State Treasurer, pursuant to such levy, shall be placed in such fund and be used and expended for the construction and maintenance of State Bridges, in such manner as the legislature may hereafter direct." Under this law the fund known as the state bridge fund may be used and expended only for the construction and maintenance of state bridges.

The claims involved in extra bills Nos. 1 and 2 fall in the same category, and the inquiry arises, with respect to these claims, whether they are of such a nature that they may be paid from the state bridge fund, limited, as it is, to the payment for the construction and maintenance of state bridges. The plaintiff has cited many cases wherein different political subdivisions have been held liable for claims of a similar nature to those involved in extra bills Nos. 1 and 2. A review of those cases would not be helpful unless this court is inclined to depart from the rule established in Sigwald v. State, 50 S.D. 37, 208 N.W. 162, 163, and the court is not so inclined. We believe there is no valid distinction between the claims involved in these two extra bills, and the claim considered in the Sigwald Case. The purpose for which the funds, here sought to be reached, are available, is that of construction and maintenance of state bridges. In the Sigwald Case the funds sought to be reached were available "only in the laying out, marking construction, or reconstruction of public highways." No material distinction therefore appears as to availability of the funds sought to be reached in this case and in the Sigwald Case. In that case it was assumed without deciding that it was an action for damages for breach of contract, and we make the same...