Southwestern Bell Tel. Co. v. Chester A. Dean Const. Co.

• Decision Date: 08 July 1963
• Docket Number: No. 49351,No. 1,49351,1
• Citation: 370 S.W.2d 270
• Parties: SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Respondent, v. CHESTER A. DEAN CONSTRUCTION COMPANY, a corporation, and Mid-Continent Plumbing, Inc., a corporation, Appellants
• Court: Missouri Supreme Court

Page 270

370 S.W.2d 270

SOUTHWESTERN BELL TELEPHONE COMPANY, a corporation, Respondent, v. CHESTER A. DEAN CONSTRUCTION COMPANY, a corporation, and Mid-Continent Plumbing, Inc., a corporation, Appellants.

No. 49351.

Supreme Court of Missouri, Division No. 1.

July 8, 1963.

Rehearing Denied Sept. 9, 1963.

John R. Baty, Kansas City, Sheridan, Baty, Markey, Sanders, Edwards & Carr, Kansas City, of counsel, for appellant Chester A. Dean Construction Company.

Edwin W. Rooker, Houts, James, Randall, Hogsett & McCanse, Kansas City, for appellant Mid-Continent Plumbing, Inc.

Howard A. Crawford, Robert D. Youle, Joseph E. Stevens, Jr., Kansas City, John Mohler, Philip L. Wettengel, William C. Sullivan, St. Louis, of counsel, for respondent.

COIL, Commissioner.

The Southwestern Bell Telephone Company brought an action to recover $150,000 as damages for alleged injury to its communications equipment which was located in a basement room of building 100 at the Richards-Gebaur Air Force Base in Jackson County. Defendants below (appellants here) were Chester A. Dean Construction Company, a corporation (hereinafter called Dean), and Mid-Continent Plumbing, Inc., a corporation. A jury found for Bell against both defendants and assessed damages in the sum of $30,000. Dean contends the trial court erred in refusing to direct a verdict for it at the close of all the evidence, in refusing to give its tendered instruction 12, in excluding testimony, and in giving respondent's instruction 4. Mid-Continent contends the trial court erred in refusing to give its proffered instruction 13.

In June 1958 the United States entered into a contract with Dan Truog and Clyde Nichols, Inc., to air condition building 100, which was an E-shapped structure, the main part of which, for the purposes of this case, ran east and west with the three prongs of the E running north-south. Under the center prong was the basement which contained, among other things, Bell's communications equipment. Air-conditioning equipment was to be installed in a room to be constructed adjacent to the west side of the existing basement. A six-inch water main ran from north to south into the area of the proposed new room and made a 90-degree turn left through the wall and into the basement of building 100 and, of course, that water main had to be relocated. The general contractor, Truog-Nichols (who originally was a defendant but who settled with Bell prior to trial), subcontracted with Dean for the erection of the new equipment room (including excavating to the depth of the existing basement), and subcontracted with Mid-Continent certain plumbing work, including the relocation of the main.

Dean began excavating with a high loader about August 1 ¹ and soon exposed the top of the water main. The general contractor thereupon directed Dean to hand excavate in the area of the pipe for which Dean received compensation additional to that provided in the original subcontract. The area excavated was approximately 30 X 30. There were about 26 feet of the main exposed, about 14 feet running from the proposed north wall of the new room to the place where the main turned left and approximately 10 to 12 feet from that point eastwardly to the basement wall of building 100. The exposed main was about three or four feet above the floor of the excavated area and Dean's carpenter foreman placed 2 X 4 and 2 X 6 vertical supports under the exposed main, but neither Dean nor anyone provided bracing or shoring against the lateral or longitudinal movement of the pipe. The 6-inch main was in fact (and Dean's carpenter foreman so knew) an active main (in which the static pressure per square inch was 85 pounds), furnishing water to building 100. The joints holding together the sections of pipe were mechanical joints which allow for ordinary expansion and which are joined by friction as oppossed to being threaded or welded. As noted, the pipe was exposed early in August and remained so with vertical supports under it until the night of August 22 when the main failed and the basement of building 100 was flooded.

In the meantime, Dean was to cut a door in the wall of building 100 (to provide passage between the new room and the existing basement), and sometime between the first and fifteenth of August, by use of a jackhammer, the door was roughed in and on August 22, again by use of a jackhammer, the doorway's edges were smoothed. On that same day, August 22, Mid-Continent dug down to a joint of the main in question, at a place 18 feet north of the north wall of a new room to obtain a measurement and about the same time removed some grouting from the opening through which the water main passed from the new room area to the basement room of building 100. Mid-Continent had arranged to change from the existing main to a relocated one on Saturday, August 23. About midnight on August 22 the joint afore-mentioned, 18 feet north of the new room's north wall, came apart, and as a result water poured into the basement of building 100 and flooded the room in which was located Bell's communications equipment.

Bell proved by expert testimony that the primary cause of the failure of the main and the consequent flooding was the absence of bracing at the place where the 6-inch main made the 90-degree left turn into building 100 to prevent lateral or longitudinal movement of the pipe. The use of the jackhammer to smooth the door opening, the digging down to the joint which failed and the removal of the grouting were described as possible contributing causes. Bell's expert witness testified that there was a custom among construction contractors and plumbing contractors when a live water main was uncovered to protect it against failure by doing the necessary shoring or anchoring of that main. The evidence was that Dean, through its authorized representatives, of course, knew that the main in question was exposed about August 1 and remained exposed until its failure on August 22; that it knew that the main was an active one carrying water for certain installations at the Air Force Base; that Dean hand dug around the pipe so as not to disturb it and shored the main with vertical braces as heretofore described; that the Dean company had theretofore done work in the area of high pressure water mains; and that the president of the company, Mr. Dean, who had knowledge of the situation as to this job, had had some engineering training and that his company had done commercial building over a period of years. Mr. Dean testified that he did not consider it his responsibility to discover how much pressure was in the main or what kind of joints held the sections of pipe and that if he had known those facts he would have done nothing more than was done because his company had no contract obligation to do more, and he therefore considered it not in the area of his company's responsibility.

Dean's contention that the trial court should have directed a verdict for it at the close of the evidence is based upon the premise that the evidence failed to show there was any duty on Dean to shore the water main against longitudinal or lateral movement. Dean points to the fact that there was no contract obligation, oral or otherwise, upon it to brace the main against such movement and, therefore, says Dean, its only duty was a common-law duty which could not exist unless Dean, in the exercise of ordinary care, knew or should have known that unless the main was braced against lateral movement its failure reasonably could have been anticipated. Dean's supporting argument is that the evidence showed that other persons, such as the general contractor's engineer supervisor, the Air Force Base engineer supervisor, engineer representatives of the architects, and perhaps others, who obviously should have had superior knowledge of the danger of the failure of the main than that possessed by Dean, were present on the job from time to time during the entire period of the water main's exposure and failed to give Dean any directions or instructions with respect to lateral bracing, even though they all saw that the only existing shoring was the vertical bracing provided by the 2 X 4's and 2 X 6's. Dean concludes that it is unrealistic to place a duty upon Dean when those with superior knowledge failed to recognize the danger.

The trouble with Dean's argument, as we see it, is first, that we are here concerned only with the question of Dean's tort liability to a third party not a party to any contract with Dean or his prime contractor; and, second, if Dean breached a common-law duty it owed to Bell to exercise ordinary care not to cause injury to Bell's equipment, it is no defense that a similar duty may have rested upon the prime contractor, the architects, the plumbing contractor, and others, 65 C.J.S. Negligence Sec. 102, p. 643, 38 Am.Jur., Negligence, Sec. 64, p. 716; Schrader v. Kessler, Mo., 178 S.W.2d 355, 358 irrespective of whether the other tort-feasors did or did not have superior knowledge of the necessity, if any, to shore against lateral movement.

It seems clear that if the evidence was such that Dean, in the exercise of ordinary care, should have known what bracing was 'necessary' to prevent a failure of the water main and a consequent flooding, Dean reasonably should have foreseen that unless the necessary shoring was installed some injury would result to whatever was in the basement of building 100. The question, of course, is whether Dean in the exercise of ordinary care should have known that 'necessary' shoring to prevent a failure of the water main included bracing against lateral or longitudinal movement.

In determining whether Bell made a submissible case against Dean, we view the evidence in the light most favorable to Bell, give it the benefit of all favorable reasonable inferences, and disregard appellants' evidence unless it aids Bell's case. Daniels v. Smith, Mo., 323 S.W.2d 705, 706. We bear in mind also...