Spitcaufsky v. State Highway Com'n of Missouri

• Decision Date: 16 December 1941
• Docket Number: 36838
• Citation: 159 S.W.2d 647,349 Mo. 117
• Parties: Hyman Spitcaufsky v. State Highway Commission of Missouri, Appellant
• Court: Missouri Supreme Court

159 S.W.2d 647

349 Mo. 117

Hyman Spitcaufsky v. State Highway Commission of Missouri, Appellant

No. 36838

Supreme Court of Missouri

December 16, 1941

Rehearing Denied March 13, 1942.

Appeal from Cole Circuit Court; Hon. Nike G. Sevier, Judge.

Reversed and remanded.

Louis V. Stigall and Wilkie Cunnyngham for appellant.

(1) It was a violation of Art. IV, Sec. 48, of the Missouri Constitution, and the trial court erred in receiving and entering a verdict for extra compensation to the respondent-contractor over and above that provided for by the written contract between the parties. (a) The defendant should be identified as the State's alter ego. State ex rel. McKinley Pub. Co. v. Hackmann, 314 Mo 33, 282 S.W. 1007; Bush v. State Highway Comm., 329 Mo. 843, 46 S.W.2d 854; Constitution of Mo., Art. IV, Sec 43; Curtis & Hill Gravel Co. v. State Highway Comm., 91 N.J.Eq. 421, 111 A. 16; Burrow v. St. Louis Service Co., 100 S.W.2d 269; R. S. 1929, secs. 8116, 8119, 8120. (b) Payment of the judgment arrived at under the circumstances in this case would be in violation of the Constitution of Missouri, Art. IV, Sec. 48. Constitution of Mo., Art. IV, Sec. 48; Carpenter v. State, 39 Wis. 271; Weston v. State of New York, 262 N.Y. 46, 186 N.E. 197; Hillside Securities Co. v. Minter, 300 Mo. 380; United Const. Co. v. St. Louis, 334 Mo. 1006, 69 S.W.2d 639; Diamond v. Mankato, 89 Minn. 48, 93 N.W. 911; Chippewa Bridge Co. v. City of Durand, 122 Wis. 85, 99 N.W. 603. (2) The trial court erred in refusing to give defendant's written instructions in the nature of demurrers to the evidence on Counts 2 and 3 at the close of all of the evidence; in entering a verdict against the defendant on said counts; and in overruling assignments 9 and 10 in the motion for new trial when no full, complete, and itemized written statement of the claims contained in said counts was given the defendant within 60 days after release of the retained percentage as required by provision H-14 of the Specifications. George v. Chicago, R. I. & P. Ry. Co., 214 Mo. 551, 113 S.W. 1099; Cudahy Packing Co. v. Atchison, T. & S. F. Ry. Co., 198 Mo.App. 520, 201 S.W. 623; Libby v. St. L., I. M. & S. Ry. Co., 137 Mo.App. 276, 117 S.W. 659; Chesapeake & O. Ry. Co. v. Martin, 283 U.S. 209, 75 L.Ed. 983, 51 S.Ct. 453. (3) The trial court erred in allowing the respondent, over the objection of the appellant, to plead and give evidence of an attempted compromise of the claim covered by Count 1. Marshall v. Taylor, 168 Mo.App. 240, 253 S.W. 527; Columbia Planing Mill Co. v. American Fire Ins. Co. of N. Y., 59 Mo.App. 204; Engel v. Powell, 154 Mo.App. 233, 134 S.W. 74; Cullen v. Ins. Co. of North America, 126 Mo.App. 412, 104 S.W. 117; Starnes v. St. J. Ry., L., H. & P. Co., 331 Mo. 44, 52 S.W.2d 852. (4) The trial court erred in refusing to admit testimony that the respondent's acts had caused the failure to complete the work within the time required by the contract.

J. L. Milligan, Clifford B. Kimberly and William E. Durham for respondent; James T. Blair of counsel.

(1) The trial court did not violate Article 4, Section 48, of the Missouri Constitution in entering judgment for plaintiff for the balance due under the contract and for damages for the breach thereof, nor did it violate said provision by excluding testimony. Art. 4, Sec. 48, Mo. Constitution; Scott v. St. Louis County, 111 S.W.2d 186, 341 Mo. 1084; Hillside Security Co. v. Minter, 254 S.W. 188, 300 Mo. 380; Bates & Rogers Const. Co. v. Board of Commrs., 274 F. 659; Bay City v. Frazier, 77 F.2d 570; Carpenter v. State, 39 Wis. 231; Western v. State of New York, 252 N.Y. 456; Christianson v. State Highway Comm., 46 S.W.2d 906; Davis Const. Co. v. State Highway Comm., 141 S.W.2d 214; R. S. 1929, sec. 8116; United Const. Co. v. St. Louis, 69 S.W.2d 639, 334 Mo. 1006. (2) The court properly refused to give defendant's peremptory instruction to Counts 2 and 3 on the ground that no written statement of the claims contained in said counts was given within the time allowed by Section H-14 of the specifications attached to and included in the contract for the reason that (a) notice was not required of these particular claims and (b) if required, was waived. (a) No notice was required. United States v. Smith, 94 U.S. 214, 94 L.Ed. 115; Anvil Mining Co. v. Humble, 153 U.S. 540, 14 S.Ct. 876; Hinds v. Hinchman, etc., 165 F. 339; Bates & Rogers, etc. v. Board, 274 F. 659; Bay City v. Frazier, 77 F.2d 570; Griffin Mfg. Co. v. Boom Boiler Co., 90 F.2d 209; Detroit Steel Prod. Co. v. United States, 62 Ct. Cl. 686; Wood v. City, 119 U.S. 312, 7 S.Ct. 219; Board of Directors v. Roach, 174 F. 949; Hart v. Amer. Concrete Steel Co., 278 F. 541; Robert Grace Cont. Co. v. C. & O. Ry., 281 F. 904; Selden Breck Const. Co. v. Regents, etc., 274 F. 982; Julius Goldstone v. United States, 61 Ct. Cl. 401; Worthington v. United States, 66 Ct. Cl. 230; Morrow v. Mo. Pac. R. Co., 123 S.W. 1034, 140 Mo.App. 200; Klass v. Wabash R. Co., 80 Mo.App. 164; Aull v. Mo. Pac. R. Co., 116 S.W. 1122, 136 Mo.App. 291. (b) Notice if required has been waived. Kolkmeyer v. C. & A. R. Co., 182 S.W. 794, 192 Mo.App. 188; Watson v. Union Pac. R. Co., 178 S.W. 871; Nairn v. M., K. & T. R. Co., 106 S.W. 102, 126 Mo.App. 707; Ward v. Mo. Pac. R. Co., 58 S.W. 28, 158 Mo. 226. (3) The trial court properly refused appellant's instruction No. IV-D in the nature of a demurrer to the evidence under Count 3 of plaintiff's petition. Emory v. Emory, 53 S.W.2d 908. (4) The trial court properly refused to admit the testimony offered on behalf of defendant in connection with the cause for redesign of the double box culvert, of plaintiff's superintendent's drunkenness, and the insufficient number of carpenters and truck drivers. United States v. United Engineering & Const. Co., 234 U.S. 236, 34 S.Ct. 843; Humphreys v. Chicago, M. & St. P. R. Co., 83 S.W.2d 586; Dinkman v. Prudential Fixture Co., 289 S.W. 591; Johannes v. Becht Laundry Co., 274 S.W. 377; Kane v. Mo. Pac. R. Co., 157 S.W. 644, 251 Mo. 13; Gore v. Whitmore Hotel Co., 83 S.W.2d 114, 229 Mo.App. 910; Morris v. Dupont Co., 139 S.W.2d 984; Lynch v. M., K. & T. R. Co., 61 S.W.2d 918, 333 Mo. 89; Schwalbert v. Konert, 76 S.W.2d 445, 230 Mo.App. 811; Durban v. St. Louis-S. F. R. Co., 275 S.W. 358; Wurdock Electric Mfg. Co. v. Engineering Co., 207 S.W. 877; Seibert v. Hatcher, 102 S.W. 962, 205 Mo. 83.

OPINION

Ellison, J.

This case has been reassigned to the writer. The plaintiff-respondent was the successful bidder for the construction of a State road project designated as Route SE., Sec. 2, in Platte County, to be completed on December 1, 1936. After the work had started the defendant-appellant State Highway Commission (hereinafter called the Commission) changed the design for a large culvert. The Commission claimed the change was necessitated by soil conditions revealed by excavation and by respondent's faulty method of excavating for the culvert as originally designed. The respondent contended his method of excavating was correct; that it conformed to the directions of the Commission's supervisors; that the Commission's action was arbitrary and capricious, constituting a breach of the contract; and that the change was material, having increased the cost and delayed the progress of the work to an extent which he could not have anticipated when he bid on it. It was not finished until the following spring, on May 28, 1937. The Commission allowed respondent an extension of time to January 28, 1937; but refused to sanction the whole delay, and withheld $ 1500 from respondent's compensation as liquidated damages because of the remaining time arrearage, under a clause of the construction contract.

Respondent thereupon brought this suit. In the first count of his petition he sued for the aforesaid $ 1500 balance of the contract price, alleged to be due because of the Commission's breach of the contract, and recovered a verdict for the full amount. The second count was for $ 6145 damages claimed for increased cost of supervision and rental value of equipment, due to the delay and unfavorable weather. On that count the verdict was for $ 700. The third count, added by amendment a year after the institution of the suit, was for the cost of materials furnished as agreed upon and used in heating concrete aggregates to prevent freezing, in the amount of $ 100. The verdict on that count was for $ 119.72. The judgment was for the sum of these several verdicts, $ 2319.72, with about nineteen months' interest on the first and third items.

The testimony for respondent and his superintendent concerning the delay is very indefinite. As we understand it, excavation work for the culvert started about the middle of September. At the depth called for by the plans no sufficient rock footings were found and the Commission's engineer required two feet further excavation. Instead of merely digging a separate trench for each of the three bridge supports as the engineer advised but did not demand, respondent blasted and excavated the whole area necessary to include all three supports. All this took about two weeks. Then work was suspended on order of the Commission for about two weeks, and new plans were substituted calling for backfilling the whole excavated area 4 or 5 feet and constructing a concrete floor thereon as a base for the bridge supports. This backfilling took about two weeks, and altogether there were about four weeks delay in a total elapsed time of six weeks extending to about November 1.

There is not much controversy on these dates. The Commission's supervising engineer testified from his diary that respondent was notified of the redesigning of the culvert on October 17 and that backfilling was commenced on October 21 and finished on...