Kranz v. Kansas City, KCD

• Decision Date: 30 October 1978
• Docket Number: No. KCD,KCD
• Citation: 573 S.W.2d 88
• Parties: Al KRANZ, d/b/a Kranz Construction Company, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant. 29420.
• Court: Missouri Court of Appeals

Page 88

573 S.W.2d 88

Al KRANZ, d/b/a Kranz Construction Company, Respondent, v. KANSAS CITY, Missouri, a Municipal Corporation, Appellant.

No. KCD 29420.

Missouri Court of Appeals, Kansas City District.

Oct. 30, 1978.

Aaron A. Wilson, City Atty., James A. Burr, Asst. City Atty., Kansas City, for appellant.

Charles R. Svoboda, Fred A. Murdock, Kansas City, for respondent.

Before HIGGINS, Special Judge, Presiding, WELBORN, Special Judge, and PRITCHARD, J.

PRITCHARD, Judge.

Respondent recovered a judgment, pursuant to the verdict of a jury, for $39,300 for additional compensation, above an original contract price, for re-excavation and re-repair of a sewer project.

Appellant's first sub-point of Point I involves Exhibit 23 which compositely sets forth the amounts of respondent's expenses in connection with re-excavation and re-repair. It is contended that there was no evidence that labor, materials and equipment listed in Exhibit 23 were furnished to respondent; that there was no evidence that Exhibit 23 was a true and accurate rendering of the account; that there was no evidence to show the reasonable value of the labor, materials and equipment furnished; and therefore the verdict was not supported by any competent evidence; and "(2) The verdict is contrary to the greater weight of all the evidence." Point II is that the court erred in inserting the words "emergency repairs" in Instruction No. 2, it being an improper modification of MAI 26.05, making it argumentative. Point III involves contended error in the court's failure to read entire Instruction No. 4 to the jury. The error contended in the giving of Instruction No. 5 is that the evidence shows that some work had been paid for by appellant, and that it instructed the jury to find what, if any, and the reasonable value of labor, materials and equipment furnished to appellant, without excluding previous payments.

Respondent was the lowest bidder for the repair of a sewer line, which had collapsed in 1969, and which served the Blue River Treatment Plant. The line was 24 inches in diameter and was about 20 feet below the surface in the "river bottom". The earth to be excavated was primarily of silt and sand. The water table was about 5 feet below the surface.

The contract, with plans and specifications prepared by appellant, required respondent to excavate the damaged sewer line, and replace the damaged portion; to remove ground water; properly to bed and backfill the new pipe; to backfill the excavation to ground level; to re-pave and re-fence the site; and to clean up the surrounding area. It required that normal sewage flow be maintained during repairs.

Respondent completed all the work in accordance with plans and specifications, except for street re-paving, fence re-installation and site cleanup on Friday, November 14, 1969. He checked the site on Sunday afternoon, November 16, and observed that an 8 inch water main which ran perpendicularly across the excavation and about 4 feet below the surface had ruptured. The following day it was determined that the new sewer line had collapsed. Respondent informed Robert L. Brown, Chief of the Maintenance Division of the Pollution Control Department, of the collapsed sewer line. Brown said, "Well, we will have to get it fixed," and later appellant was told by Pollution Control "we have got to have the line in. You know this was an emergency deal. And this line has got to be done." Appellant's representatives told respondent that they would take up the matter of his compensation for extra work at a later time, but indicated it was up to him to fix it, and told him he would not be paid for the work already performed until he reconstructed the sewer line damage of November 14.

Respondent commenced re-excavation December 1, 1969, using a different method of installing the line pursuant to a letter from Brown of Pollution Control. Although he requested a change order for the repair work, no response thereto was made. The repair project was completed on February 13, 1970, and was accepted by appellant March 19, 1970, and it paid the contract price, plus two minor changes in the amount of $23,081.10.

Appellant's first contention that there was no evidence that labor, materials and equipment, shown on Exhibit 23, were furnished it, must be overruled, because appellant admits in its brief that respondent excavated and did the re-repair work, and the transcript is replete with evidence that he furnished the necessary labor, materials and equipment to do so. The real issue presented by appellant is whether there was a true and accurate rendering of the account, and whether evidence was necessary to show the reasonable value of labor, materials and equipment furnished. Exhibit 23 was admitted into evidence without objection or question. Respondent's offer was "MR. SVOBODA: At this time I would like to offer Plaintiff's Exhibit Number Twenty-three as a computation of the charges for extra work performed by the Kranz Construction Company between December 1st, 1969, and February 5th, 1970, on the sewer line, in which charges for extra work are computed in accordance with the formula as set forth as the force account method in the exhibit, Plaintiff's Exhibit Number Two. MR. BURR: I have no objection, Your Honor." In addition to the admission, above, and the other evidence of the furnishing of labor, materials and equipment, counsel's offer into evidence clearly shows that Exhibit 23 was a computation of the charges for the extra work. The exhibit itself shows that computation, broken down into categories: A. Wages, $6,306.09; B. Material, $1,567.54; C. Equipment Rental, $16,100.42; D. Contract Labor, $95.94; total charges, $24,069.99, to which is added E. Fee, $3,859.17 (15% Of total charges); and the total due, $27,929.16. The hours and rates per hour for wages and equipment rental are set forth in Exhibit 23. These computations are substantially in accordance with the contract, Exhibit 2, Section 1903, "Payment for Extra Work", and Section 1903.3, "Force Account: When work is authorized by Change Order to be done by Force Account, accounting procedures for such work, satisfactory to the Director, shall be installed by the contractor. The final amount to be paid the contractor as full compensation for furnishing all labor, equipment and...