Mac-Fab Products, Inc. v. Bi-State Development Agency of Missouri-Illinois Metropolitan Dist.

• Decision Date: 24 February 1987
• Docket Number: MISSOURI-ILLINOIS,MAC-FAB,No. 50833,BI-STATE,50833
• Citation: 726 S.W.2d 815
• Parties: PRODUCTS, INC., Plaintiff-Respondent, v.DEVELOPMENT AGENCY OF theMETROPOLITAN DISTRICT, Defendant, Third-Party Plaintiff-Appellant, v. HERCULES CONSTRUCTION COMPANY, Third-Party Defendant, Third-Party Plaintiff, Atlas Iron Works, Inc., Third-Party Defendant.
• Court: Missouri Court of Appeals

Page 815

726 S.W.2d 815

MAC-FAB PRODUCTS, INC., Plaintiff-Respondent, v. BI-STATE DEVELOPMENT AGENCY OF the MISSOURI-ILLINOIS

METROPOLITAN DISTRICT, Defendant, Third-Party Plaintiff-Appellant, v. HERCULES CONSTRUCTION COMPANY, Third-Party Defendant, Third-Party Plaintiff, Atlas Iron Works, Inc., Third-Party Defendant.

No. 50833.

Missouri Court of Appeals,

Eastern District,

Division Two.

Feb. 24, 1987.

Motion for Rehearing and/or Transfer Denied March 25, 1987.

Amy Rehm Hinderer, St. Louis, for defendant, third-party plaintiff-appellant.

Edwin D. Akers, Clayton, Jay Lewis Levitch, St. Louis, and Richard Scott Bender, Clayton, for plaintiff-respondent.

DOWD, Judge.

Defendant/third-party plaintiff, Bi-State Development Agency of the Missouri-Illinois Metropolitan District (Bi-State), appeals from a judgment entered on a jury verdict which awarded the plaintiff, Mac-Fab Products, Inc. (Mac-Fab), $102,454.00 on a breach of contract claim. Bi-State also appeals from a directed verdict in favor of third-party defendant/third-party plaintiff, Hercules Construction Company (Hercules). We affirm.

A jury could reasonably have found the following. Bi-State constructed its Brentwood Station Garage in 1981 and 1982. McBros/Fleming (not a party) contracted to perform management services and Hercules contracted to perform as the general contractor for the Structural Building Frame phase. Hercules subcontracted most of its work to third-party defendant, Atlas Iron Works, Inc. (Atlas). The structural phase included the manufacture, delivery, installation, and touch-up painting of the metal roof decking. The garage roof covered approximately six acres and required approximately 2800 squares of metal decking. The underside of the decking was to be painted with two coats of finish paint after the installation and would serve as the ceiling for the garage portion of the building.

Bi-State issued a purchase order for the decking in August, 1981 in the amount of $207,000.00. Bi-State purchased the decking directly from Mac-Fab in order to take advantage of Bi-State's tax-exempt status. Hercules' contract was then reduced by the amount of the taxes. The Mac-Fab invoices, however, were sent to Atlas who submitted them to Bi-State with the monthly pay requests.

Mac-Fab manufactured the decking between April 8, 1982 and April 23, 1982. The specifications required that the metal be chemically cleaned, treated with phosphate, and treated with a primer coat of rust inhibitive paint. The primer was designed to "protect the steel for only a short period of exposure in ordinary atmospheric conditions and shall be considered as an impermanent and provisional coating." Once the manufacturing process was completed, the decking was stored at Mac-Fab until delivery to the site was requested. All of the decking was delivered to the site between April 12, 1982 and May 19, 1982 with the exception of eight pieces that were delivered on June 21, 1982. The storage specifications required that the decking be stored off the ground with one end elevated and that a protective, waterproof covering be placed over the decking. The cover was to be ventilated to avoid condensation. The decking was installed on the superstructure between April 22, 1982 and June 30, 1982.

A notice to proceed with the painting was sent to Joseph A. Ward Painting Co. (Ward), the painting subcontractor for the underside of the deck (also not a party), on May 24, 1982. Ward, according to the terms of the contract, inspected the site and notified McBros/Fleming by letter dated June 4, 1982 that Ward would be unable to proceed due in part, to large areas of rust on the underside of the deck. The letter also stated there was not yet a floor upon which to put a rolling scaffold and that Ward would be unable to prevent dust and dirt from blowing onto the fresh paint. There was a severe winter and an unusually wet spring in 1982 and the site conditions were generally poor.

On June 15, 1982 a meeting was held which representatives of McBros/Fleming, Hercules, Atlas, and Mac-Fab attended. The notes of the meeting reflect that 75% of the decking had rusted. Mac-Fab suggested that the paint be put on over the rust but Bi-State rejected the idea. In a letter dated June 24, 1982 Hercules wrote to McBros/Fleming requesting that direct payments to Mac-Fab be withheld until the problem with the rust was resolved. The decking continued to deteriorate over the summer and another meeting was held on September 20, 1982. Mac-Fab suggested that Ward put on another coat of primer over the rust and then only one finish coat. Mac-Fab offered to pay the difference in cost. This suggestion was also rejected and Bi-State directed McBros/Fleming to hire an independent testing laboratory to determine the cause of the rust. A technician for Industrial Testing Laboratories, Inc. (ITL) took samples of the rust and primer. ITL issued a report which indicated the rust was caused by a dirty substrate condition before the application of the primer. In late September, 1982 Bi-State had the rusted decking sandblasted and reprimed at a cost of $102,454.00. Bi-State withheld this amount from the payment to Mac-Fab on the original purchase price of $207,000.00. Hercules was issued a certificate of substantial completion and was paid in full.

Mac-Fab then brought an action for breach of contract against Bi-State who, in turn, filed a third-party petition against Hercules who, in turn, filed a third-party petition against Atlas. At trial Mac-Fab maintained the decking was manufactured according to the specifications and that the rust was caused by improper storage and installation at the site. Bi-State maintained the rust was the result of improper manufacture. At the close of Bi-State's case the trial court granted motions by both Hercules and Atlas for a directed verdict. The claim between Mac-Fab and Bi-State was presented to the jury, which returned a verdict in favor of Mac-Fab in the amount of $102,454.00. Bi-State appeals from the verdict in favor of Mac-Fab and from the directed verdict in favor of Hercules. Atlas filed a motion to be dismissed from the appeal as Hercules failed to appeal the directed verdict in favor of Atlas on Hercules' third-party petition.

Bi-State raises the following points on appeal: (1) There is no substantial evidence to support the verdict in favor of Mac-Fab; (2) The trial court erred in failing to direct a verdict in favor of Bi-State in that Mac-Fab failed to establish that its decking met the specifications; (3) The trial court erred in allowing evidence of the site after June 1982 in that it was immaterial, irrelevant, and prejudicial; and (4) The trial court erred in directing a verdict in favor of Hercules in that sufficient evidence was produced to prove all of the elements of Bi-State's claim against Hercules.

Bi-State's first two points address the sufficiency of the evidence presented by Mac-Fab. Evidence was presented at trial that Bi-State ordered the decking, that Mac-Fab manufactured it according to specifications, and that it was delivered to the job site. Bi-State's contentions that the decking did not conform to the specifications address the credibility and weight of the testimony and are properly a question for the jury. "It is only when there is a complete absence of probative fact to support a verdict that an appellate court will interfere." Lauber v. Buck, 615 S.W.2d 89, 91 (Mo.App.1981). We find there is substantial evidence to support the verdict and that it was not error for the trial court to refuse to direct a verdict in favor of Bi-State on Mac-Fab's claim. Points one and two are denied.

Bi-State contends in its third point the trial court erred in admitting photographs of the site taken after June 1982 which showed the condition of the site after a rainfall. Bi-State contends the photographs are irrelevant and immaterial because the rust was detected by late May or early June and the muddy condition of the site in June was not representative of the site during construction.

The fact that a photograph of a location was taken before or after changes have occurred does not make the photograph inadmissible if the changes are explained. State Highway Commission v. Eilers, 406 S.W.2d 567, 571 (Mo.1966). It is for the jury to assess the proper weight to be given the photographs. Id. Admission or rejection of a photograph is a matter of trial court discretion and its ruling will not be disturbed on appeal absent an abuse of that discretion. Long v. Hooker, 443 S.W.2d 178, 181 (Mo.1969). An abuse of discretion is "a judicial act which is untenable and clearly against reason and which works an injustice." State v. Stubenrouch, 499 S.W.2d 824, 826 (Mo.App.1973).

Other photographs of the site, taken before June 1982, were also admitted into evidence. There was testimony of unusually wet site conditions in the spring and summer of 1982. The significance to be accorded the photographs taken after June 1982 was for jury to determine and thus, we do not find the trial court abused its discretion in allowing the photographs to be admitted. Point denied.

Bi-State contends in its final point the trial court erred in directing a verdict in favor of Hercules on Bi-State's third-party petition because sufficient evidence was produced to prove all of the essential elements of Bi-State's cause of action. In its third-party petition Bi-State alleges Hercules was in breach of contract because (1) The decking materials supplied by Mac-Fab did not meet the specifications; ¹ (2) The decking materials did not conform to the requirements of the contract (as required by the general warranty clause of the contract between Bi-State and Hercules); and (3) Hercules neglected to properly store the decking materials prior to installation. The third allegation is submitted on appeal in the alternative...