Phegley v. Porter-DeWitt Const. Co., Inc., PORTER-D

• Decision Date: 25 October 1973
• Docket Number: No. 9176,PORTER-D,9176
• Citation: 501 S.W.2d 859
• Parties: Byron J. PHEGLEY and Fern Phegley, Plaintiffs-Appellants, v.eWITT CONSTRUCTION COMPANY, INC., Defendant-Respondent.
• Court: Missouri Court of Appeals

Page 859

501 S.W.2d 859

Byron J. PHEGLEY and Fern Phegley, Plaintiffs-Appellants, v. PORTER-DeWITT CONSTRUCTION COMPANY, INC., Defendant-Respondent.

No. 9176.

Missouri Court of Appeals, Springfield District.

Oct. 25, 1973.

Marvin L. Dinger, Ironton, for plaintiffs-appellants.

John Schneider, Samuel Richeson, Dearing, Richeson, Roberts & Wegmann, Hillsboro, for defendant-respondent.

STONE, Judge.

This is an action by plaintiffs Byron J. Phegley and Fern Phegley against defendant Porter-DeWitt Costruction Company, Inc., for damage to plaintiffs allegedly resulting from defendant's negligence in damming, diverting and discharging surface water onto plaintiffs' land. About ten months after institution of suit, the depositions of plaintiff Byron and defendant's job superintendent Matkin were taken. Some fourteen months later, defendant filed its motion for summary judgment; and shortly thereafter the trial court sustained that motion and entered judgment for defendant. Plaintiffs appeal.

From plaintiffs' petition and the depositions, we glean the following. Plaintiffs owned a tract of approximately fourteen acres, the contour of which was irregular (the legal description in the transcript being almost two pages in length) but roughly resembled that of an arrowhead pointed toward the west. This tract lay on the north side of old Missouri State Highway No. 21 (hereinafter 'old 21') which ran in an easterly-westerly direction. 'A small creek' known as Flat Creek, running in a general northeasterly direction, flowed under a bridge on old 21 at a point southwest of, but near, the west 'arrowhead' point of plaintiffs' tract. Shortly prior to plaintiffs' acquisition of this tract, their predecessors in title had conveyed to the State the right-of-way for relocation of old 21 along an easterly-westerly course through the tract, roughly paralleling old 21 and a relatively short distance north thereof.

Defendant Porter-DeWitt Construction Company, Inc., was the contractor on an 8 1/2 mile section of the new relocated Missouri State Highway No. 21 (hereinafter 'new 21'), which included the relocated paved roadway through plaintiff's tract and a new bridge over Flat Creek at the 'arrowhead' point thereof. Plaintiffs' petition asseverated that, in the course of such construction of new 21, defendant 'removed' the Flat Creek bridge on old 21 and 'filled in and dammed up the area underneath said bridge where said creek ran and diverted said creek, changing the course and direction of its flow into and through a culvert of insufficient size to properly carry off and drain the surface water occumulating in said creek thereby creating a damming effect' so that during heavy rains on December 27, 1968, and again on January 29, 1969, the creek overflowed and plaintiffs thereby were damaged in the particulars detailed.

At the time of those rains, 'the slab' on new 21 in that vicinity 'had been poured' but whether or not the new Flat Creek bridge on new 21 then had been completed is but one of many factual details concerning which the confused, confusing and (in some respects) conflicting depositional testimony leaves otherwise uninformed readers, such as ourselves, in grave doubt. Both deponents did agree that 'a bypass' ¹ had been constructed, and at the time of the aforesaid rains was still being used, for the purpose (as defendant's job superintendent Matkin explained) of handling 'traffic from old 21 around that culvert (under the new Flat Creek bridge on new 21) to new 21 while the building of that culvert was being made and also while the pavement was being done in that area.' Deponent Matkin described this bypass as an 'earth fill' with 'a base surfacing with two inches of asphaltic concrete on top of that' and 'a sixty-six inch corrugated metal pipe underneath it--I believe the dimensions are correct--whatever the plans show . . ..' (All emphasis herein is ours.) However, plaintiff Byron testified that defendant 'left a four-foot tile in there (that) was not adequate to carry the water that came down Flat Creek.' Whatever the size of the 'pipe' or 'tile' may have been Matkin and Byron agreed that indeed the bypass 'held the water back' (as Matkin phrased it) during the heavy rains when plaintiffs' property was flooded.

Both deponents also were interrogated concerning another pipe, to wit, a pipe permitting drainage from (a) the 'very shallow (east-west) ditch' along the south and upstream side of new 21 on its relocated easterly-westerly course through plaintiffs' tract to (b) the north and unditched downstream side of new 21. Plaintiff Byron opined that was a two-foot pipe, while defendant's job superintendent Matkin 'believe(d)' it was a 'twenty-four or thirty inch pipe--I don't remember offhand.' According to Matkin, that pipe was open 'at the beginning of the flood' ² but 'some of the lumber and what not from somewhere got into the end of the pipe' so that later 'it wasn't running a full stream on the downstream (north) end of it . . . as to the amount of (flow) I wouldn't say.'

Although the depositions of plaintiff Byron and Matkin obviously were not taken with a view to developing all of the relevant physical facts as upon trial, e.g., the precise location of plaintiffs' home, tool shed, 'worm beds,' ³ deep well pump, pond etc., we are informed specifically that plaintiffs' trailer house was on the south or upstream side of new 21 as relocated along its easterly-westerly course through their tract and, upon searching examination of the depositional evidence, we are moved inferentially to the view that plaintiffs' tool shed, 'worm beds' and deep well pump also were on the south or upstream side of new 21. All of the improvements must have been some distance east of the bapass and also the pipe under new 21. As indicative of the nature and extent of the back-up and overflow on plaintiffs' tract during the heavy rains in December 1968 and January 1969, we note plaintiff Byron's testimony that the water was eighteen to twenty inches deep in plaintiffs' tool shed, that their deep well pump was flooded out and ruined, that 'some lumber stacked' south of new 21 was washed downstream to the north over that highway and into Flat Creek, and that approximately 'five hundred yards' of loose dirt, much of it from 'new fills and ditches' along new 21, likewise were washed to the north into a pond on that portion of plaintiffs' tract.

Defendant's position, both in the trial court and on appeal, is stated plainly and succinctly in the following portion of a letter (included in the transcript) from defendant's counsel to the trial judge shortly prior to entry of the summary judgment:

'In my opinion, the controling (sic) case is Rector v. Tobin Construction Co., 377 S.W.2d 409 (Mo. banc 1964). The facts in that case are almost exactly like the facts in this case. It appears in our case that, according to State Highway Department plans, Porter-DeWitt had erected a temporary earthen fill for the purpose of moving machinery. The fill partially obstructed the channel of a water course. There came a heavy rain and plaintiff (sic) claims that as a result, his worm beds and other property were damaged. The depositions reveal that the construction was in exact accordance with State Highway Commission Plans. The Tobin case squarely rules the issue of liability in favor of the defendant. It is respectfully suggested that on this basis a summary judgment should be entered in favor of defendant, Porter-DeWitt.'

To justify and support its position, defendant relies upon certain depositional statements by its job superintendent Matkin, which we now note. To the inquiry, 'is it my understanding as to what you are telling me, that you and your people had constructed this thing according to highway specifications up to this point,' Matkin answered, 'yes, sir.' Other questions afforded opportunities for Matkin to interpose generalized conclusionary (and usually unresponsive) statements, e.g., 'As far as (defendant) is concerned, we can only build a highway one way, and that is the way it is designed to be built by the Highway Department, unless they tell us different'--'we have no say in how to build the highway; we only have one alternative, and that is to build it as plans are shown or by letter or change order from the Highway Department only.' Defendant's counsel also point to Matkin's statement that 'they (a representative of the State Highway Department) are on the job every day checking our work,' but in this connection we observe that Matkin did not remember whether defendant was working on that construction project at the time of either the first or the second 'flood.' And, although we know judicially that governing statutes required this construction project to be done in accordance with plans, specifications and a contract entered into with the State Highway...