Louis Lyster General Contractor, Inc. v. City of Las Vegas

• Decision Date: 08 October 1971
• Docket Number: No. 9204,9204
• Citation: 83 N.M. 138,1971 NMSC 94,489 P.2d 646
• Parties: , 3 ERC 1200 LOUIS LYSTER GENERAL CONTRACTOR, INC., a New Mexico Corporation, Plaintiff-Appellant, v. CITY OF LAS VEGAS, New Mexico, a municipal corporation, Defendant-Appellee and Cross-Appellee, v. T. E. SCANLON AND ASSOCIATES, a partnership, Third-Party Defendant-Appellee and Cross-Appellant.
• Court: New Mexico Supreme Court

Page 646

489 P.2d 646

83 N.M. 138, 3 ERC 1200

LOUIS LYSTER GENERAL CONTRACTOR, INC., a New Mexico

Corporation, Plaintiff-Appellant, v. CITY OF LAS VEGAS, New Mexico, a municipal corporation, Defendant-Appellee and Cross-Appellee, v. T. E. SCANLON AND ASSOCIATES, a partnership, Third-Party

Defendant-Appellee and Cross-Appellant.

No. 9204.

Supreme Court of New Mexico.

Oct. 8, 1971.

[83 N.M. 141] H. E. Blattman, Las Vegas, Charles E. Barnhart, Albuquerque, for appellant.

Zinn & Donnell, Santa Fe, for appellee and cross-appellant Scanlon.

Roberto L. Armijo, Las Vegas, for appellee and cross-appellee City of Las Vegas.

OPINION

STEPHENSON, Justice.

Louis Lyster General Contractor, Inc. ('Lyster') and T. E. Scanlon and Associates, sometimes called Scanlon-Erwin & Associates, both names referring to the same entity and hereafter collectively called 'Scanlon,' have appealed from a money judgment entered against them in favor of the Town of Las Vegas on account of a structural failure in a sewage treatment facility in this case of many stercoraceous facets. The City of Las Vegas ('the City') has since been substituted for the Town of Law Vegas as a party.

This is the second appeal in this case. See Louis Lyster Gen. Con., Inc. v. Town of Las Vegas, 75 N.M. 427, 405 P.2d 665 (1965) (the 'first appeal'). The opinion, which reversed and remanded for a new trial, accorded the parties the right 'to amend their pleadings to simplify the same and to eliminate the present errors and confusion as to issues, parties, and the type of relief sought.' This has proven a vain hope.

Scanlon asserts that he was not a party at the time of the second trial. This issue is to be resolved by the law relating to pleading. The pleadings here are complex. We will first deal with Lyster's appeal and will defer an exposition of the pleadings, except as they relate to Lyster, until we reach Scanlon's appeal.

Following the first appeal, Lyster filed an amended complaint against the City only, Scanlon being omitted as a defendant, seeking recovery of the unpaid balance on a construction contract. The complaint as amended alleged the structural failure in question to have resulted from an inadequate and improper design by Scanlon as the agent of the City. The City by its answer denied the agency and alleged that the failure was in part caused by Lyster's improper workmanship and failure to follow the plans and specifications.

Lyster, from a time antedating the first trial and the first amended complaint, while Mr. Lyster individually was plaintiff, was a defendant in a third-party complaint filed against it by the City seeking a money judgment, asserting that it had failed to complete a tray as specified in the contract documents and that it was negligent in the construction of the tray slab, which resulted in its collapse. Lyster does not assert that it was not properly defending this claim of the City.

The issues embodied in all of the pleadings were tried to the court without objection by anyone other than Scanlon. Following trial, findings were requested by Lyster and United States Fidelity & Guaranty Company (U.S.F. & G.), Lyster's surety. The court in its decision found various items of negligence on the part of both Scanlon and Lyster, and that such acts or omissions equally contributed to the structural failure. Judgment was entered against Lyster and Scanlon for various items of damages, including liquidated damages. No judgment was entered against U.S.F. & G. The means of its escape do not appear.

The evidence showed that the contract called for a circular structure forty feet in diameter and thirty feet high of reinforced concrete. Eight feet from the top there was a tray with a four-foot opening in the center. The portion of the structure from the tray upward comprised the upper chamber. A revolving arm driven by an electric motor was designed to revolve slowly over the surface of the tray. In operation, waste material was supposed to enter the structure, find its way onto the tray and then pass through the opening into the lower chamber. The revolving arm was designed to keep the solids broken up and move them slowly to the center.

There was a structural failure of the tray during the time the plant was being tested, as evidenced by a crack around the tray where it joined the outer walls and a dropping of the tray from a point at the end of the structural steel supports which extended seven feet inward from the outer walls. The tray hit the revolving arm, jamming and binding it and the machinery which moved it, rendering the structure inoperative.

Lyster, in its first four points, attacks certain findings of fact made by the trial court and also, in some instances its failure to adopt findings requested by Lyster. We are bound to view the evidence, together with all favorable inferences reasonably deducible therefrom, in the light most favorable to support the findings. All evidence unfavorable to the findings must be disregarded and no unfavorable inferences will be drawn. Oberman v. Oberman, 82 N.M. 472, 483 P.2d 1312 (1971). We have examined those portions of the record cited by the parties in support of their respective positions.

Lyster's Point One is:

'THE COURT ERRED IN REFUSING TO FIND THAT SCANLON'S CONTRACT WITH THE TOWN REQUIRED SCANLON TO PROVIDE A RESIDENT SUPERVISOR FOR THE PROJECT.'

This point is abstract and without relevance. Since no causal relationship between the want of a resident inspector and the failure of the structure is suggested, the court's action related merely to evidentiary matters, and the error, if any, was harmless.

Lyster's Point Two is:

'THE COURT ERRED IN ITS FINDING OF FACT NO. 15, TO-WIT, 'SAID CLARIFIER-DIGESTER WAS EQUIPPED WITH AN ALARM SIGNAL WHICH WAS SET TO GO OFF AT ANY TIME EXCESSIVE FRICTION DEVELOPED BETWEEN THE DORR-OLIVER MECHANISM AND THE STRUCTURE, THUS PROVIDING AN OPPORTUNITY TO STOP OPERATION OF THE UNIT FOR INSPECTION AND REMEDIAL ACTION."

And its Point Four is:

'THE COURT ERRED IN MAKING ITS FINDINGS OF FACT NO. 20, TO-WIT: 'THAT AFTER COMPLETING THE CONSTRUCTION OF SAID CLARIFIER-DIGESTER, LOUIS LYSTER, GENERAL CONTRACTOR, INC., NEGLIGENTLY AND IN VIOLATION OF HIS CONTRACT, ATTEMPTED TO SEED THE SAME WITH RAW SEWAGE AND SLUDGE DURING COLD, INCLEMENT

AND FREEZING WEATHER, THEREBY RENDERING IT IMPOSSIBLE FOR THE SEEPING AREA WHICH PERMITTED MATERIAL ON THE UPPER PORTION OF THE UNIT TO SEEP DOWN INTO THE LOWER PORTION OF THE UNIT TO BECOME CLOGGED, FROZEN AND STOPPED; AND THAT SAID CONTRACTOR NEGLIGENTLY FAILED TO CHECK OR DETERMINE WHETHER OR NOT SAID SEEDING MATERIAL WAS IN FACT FLOWING INTO THE LOWER CHAMBER OF SAID UNIT, AND WHETHER OR NOT SAID LOWER CHAMBER HAD BECOME FILLED BEFORE ALLOWING THE UPPER CHAMBER TO FILL UP."

We agree with Lyster as to both Points Two and Four. However, since our decision as to them is neither dispositive of the appeal nor significant in the result we reach, it does not seem worthwhile to discuss them further.

Lyster's Point Three is:

'THE COURT ERRED IN MAKING ITS FINDING OF FACT NO. 16, TO-WIT, 'THAT, AS DESIGNED BY T. E. SCANLON, SAID TRAY SLAB WAS TO BE CONSTRUCTED WITH CONCRETE WITH REINFORCING STEEL BARS WHICH WERE TO BE PLACED, SET AND TIED-IN IN A PRECISE AND SPECIFIC MANNER.' AND ERRED FURTHER IN MAKING ITS FINDING OF FACT NO. 18, TO-WIT, 'THAT IN CONSTRUCTING SAID CIRCULAR STRUCTURE AND TRAY SLAB LOUIS LYSTER, GENERAL CONTRACTOR, INC., NEGLIGENTLY, AND IN VIOLATION OF HIS CONTRACT WITH THE TOWN OF LAS VEGAS, FAILED TO PLACE SOME OF THE SPECIFIED REINFORCING STEEL BARS IN ACCORDANCE WITH THE PLANS AND SPECIFICATIONS REFERRED TO IN, AND MADE A PART OF, PLAINTIFF'S EXHIBIT NO. 1, THE CONTRACT, WHICH PLANS AND SPECIFICATIONS ARE PLAINTIFF'S EXHIBITS NO. 2 HEREIN.' AND FURTHER ERRED IN REFUSING TO ADOPT THE PLAINTIFF'S REQUESTED FINDING OF FACT VI, TO-WIT, 'THAT LOUIS LYSTER, GENERAL CONTRACTOR, INC., DID CONSTRUCT SAID SEWAGE TREATMENT PLANT IN ACCORDANCE WITH PLANS AND SPECIFICATIONS BY T. E. SCANLON AND ASSOCIATES."

From an examination of the plans and specifications, it seems to us that the placement of steel was detailed with some specificity and that accordingly the court's Finding No. 16 is sustained by the evidence.

The crucial question is whether substantial evidence supports Finding No. 18. Lyster launches its argument and analysis of the evidence by saying that the testimony of both Mr. Lyster and Mr. Scanlon, who have personal interests, would be ignored and the testimony of 'the highest qualified expert' is then discussed. This constitutes a bald plea for us to weigh the evidence which we decline to do. Lyster's argument and anlaysis is forceful and persuasive. From the cold record, we might have made findings different from those made by the trial court, but we are unwilling to depart from our oft announced substantial evidence rule.

Actually, there was an implication from the testimony of Lyster's expert that the steel intended to reinforce and support the tray had been placed by Lyster in a manner at variance with the plans and normal practice. There was considerable testimony from Mr. Scanlon to the effect that this steel had not only been improperly placed, but that such placement was also the cause of the structural failure.

We thus must resolve this point adversely to Lyster. Since the findings attacked are supported by substantial evidence, it follows that it was not error for the court to refuse the contra finding requested by Lyster.

In its fifth point Lyster claims that the trial court erred in finding that Scanlon was not the agent of the City and in refusing a requested finding that he was, and in its sixth point that the court erred in declining to impute the negligence of Scanlon to the City.

We do not agree. In the present posture of the case, the doctrines of agency and respondeat superior are without significance and the error, if any, was harmless. Lyster, in its amended...