Robert E. Lee & Co. v. Commission of Public Works of City of Greenville, 18734

• Decision Date: 05 December 1967
• Docket Number: No. 18734,18734
• Citation: 158 S.E.2d 185,250 S.C. 394
• Court: South Carolina Supreme Court
• Parties: ROBERT E. LEE & COMPANY, Inc. and Dixie Construction Company of Georgia, Inc., Respondents-Appellants, v. COMMISSION OF PUBLIC WORKS OF the CITY OF GREENVILLE, South Carolina,Appellant-Respondent.

Page 185

158 S.E.2d 185

250 S.C. 394

ROBERT E. LEE & COMPANY, Inc. and Dixie Construction Company of Georgia, Inc., Respondents-Appellants, v. COMMISSION OF PUBLIC WORKS OF the CITY OF GREENVILLE, South Carolina,Appellant-Respondent.

No. 18734.

Supreme Court of South Carolina.

Dec. 5, 1967.

Rainey, Fant & Horton, Leatherwood, Walker, Todd & Mann, Greenville, for appellant-respondent.

Wyche, Burgess, Freeman & Parham, Greenville, Hitch, Miller, Beckmann & Simpson, Savannah, for respondents-appellants.

BRAILSFORD, Justice.

The plaintiffs in 1959 contracted to install a 48-inch pipeline from Travelers Rest in Greenville County to the defendant's North Saluda Dam. The plans furnished by the defendant as the basis of the contract purported to reveal the logs of auger borings which had been made along the pipeline route to determine the character of subsurface materials. After completing the installation, plaintiffs sued for damages, alleging that there were prejudicial discrepancies between the subsurface information represented on the plans and that actually revealed by the test hole borings, which had been logged in contemporaneous field notes. A first trial resulted in a verdict for the defendant, which was reversed on appeal because of errors in the charge and in the admission of evidence. The second trial resulted in a verdict for plaintiffs in the sum of $187,500.00. The defendant has appealed on exceptions which, according to the brief, raise four questions. We, of necessity, shall refer to our opinion on the first appeal to some extent. However, we shall endeavor to avoid unnecessary duplication, and that opinion, Robert E. Lee & Co. v. Commission of Public Works of City of Greenville, 248 S.C. 84, 149 S.E.2d 55, should be read for a full understanding of the case.

The first and second questions argued by the defendant relate to the following excerpt from the charge:

'The defendant admits that it failed to reveal on the plans the water encountered in making the auger borings on the plans and specifications, and it also appears beyond dispute that changes were made in the subsoil classifications recorded at the time of making the borings. I charge you that failing to record upon the plans the water and subsoil conditions actually encountered constitutes a breach by the defendant of its implied warranty.'

The defendant first contends that the court erred in charging the jury 'that the defendant failed to properly record the subsoil conditions upon the plans.' The error assigned is that there was a dispute in the evidence as to whether the plans correctly revealed the subsoil conditions actually encountered; hence, this issue should have been submitted to the jury. We find no merit. The logs of the test borings as represented on the plans bore little resemblance to the field notes, which showed the unsatisfactory subsurface conditions actually encountered.

After the first trial, M. H. Woodward, a soil expert employed by the defendant, made borings near the test holes shown on the plans. This expert witness testified that any differences between soil Classifications revealed by his borings and those shown on the plans were inconsequential. The defendant relies upon this testimony in contending that whether subsurface conditions had been misrepresented was an issue of fact for the jury. This disregards the witness' forthright distinction between technical soil Classifications and the character of subsurface materials, which latter the defendant was bound to fully and accurately disclose. The following comparison of the logs of a few of the Woodward borings with the original field notes and the logs shown on the plans refutes the claim that this witness' testimony raised an issue of fact in this respect:

                Hole No.     Field Notes         Plans             Woodward Borings
                  "59     0'-4' Black Dirt   0'-4' Silt     0'-1' Sandy Topsoil
                          4'-7' Blue Mud     4'-7' Clay     1'-7' Saturated, Brown
                                 & Water     7'-10' Sand           Plastic Clay-
                          7'-10' Sand &                            water at 7 feet
                                  Water                     7'-10' Coarse sand with
                                                                    fine gravel
                                                                    saturated
                   79     0'-4' Sand         0'-4' Sand     0'-1 1/2' Sandy Topsoil
                          4'-6' Brown dirt   4'-6' Sandy    1 1/2'-7' Soft dark Grey
                          6'-10' Blue Mud           Clay               Clayey Silt
                                  & Water    6'-10' Clay               saturated, Water at
                                                                       7 feet
                                                            7'-10' Grey coarse sand
                  119     0'-3' Red Sandy    0'-8' Sandy    0'-1' Sandy Topsoil
                                 Dirt               Clay    1'-8' Buff Sand-Clay
                          3'-8' Gray Sandy   8'-10' Clayey         Water at 6 feet
                                 Clay                Sand   8'-10' Grey, saturated
                          8'-9' Sandy Clay                          Micaceous, silty
                                 & Water                            sand
                          9'-10' Blue Clay
                                  & Water
                  155     0'-5' Brown Dirt   0'-5' Clay     0'-1' Sandy Topsoil
                          5'-10' Yellow Mud  5'-10' Sandy   1'-2.7' Brown, plastic
                                  & Water            Clay            clay silt
                                                            2.7'-8' Grey, vermiculite
                                                                     soft saturated
                                                                     water at 7 feet
                                                            8'-10' Damp, tan sandy
                                                                    silt.'
                

The defendant next urges that the court erred in charging the jury that its failure to record upon the plans the water encountered in making test borings constituted a breach of implied warranty. The error assigned is that the defendant never purported to show water conditions on the plans, and this determination was left open to the independent investigation of the bidders. This contention has been urged by the defendant from the inception of the litigation and is foreclosed by our decision on the prior appeal, which is binding upon the parties both as a precedent and as the law of this case. In the light of the issues before the court, the following excerpts from the opinion require this conclusion:

'The statement in SC--25 before quoted, that the owner had made auger borings along the...