State v. Feigle

• Decision Date: 22 June 1928
• Docket Number: No. 13161.,13161.
• Parties: STATE v. FEIGLE.
• Court: Indiana Appellate Court

162 N.E. 55

STATE

v.FEIGLE.

No. 13161.^*

Appellate Court of Indiana, in Banc.

June 22, 1928.

Appeal from Superior Court, Marion County.

Action by John R. Feigle against the State and the State Highway Commission. From a judgment for plaintiff, the State appeals. Affirmed.

Arthur L. Gilliom, Atty. Gen., and Connor D. Ross, Asst. Atty. Gen., for the State.

Funkhouser, Funkhouser & Markel, of Evansville, and Henderson & Henderson, of Indianapolis, for appellee.

NICHOLS, C. J.

Action by appellee against the state and the state highway commission for damages growing out of the breach of a highway construction contract. The complaint alleges: That heretofore, to wit, on February 19, 1924, appellee and the state, by the state highway commission, duly entered into a contract in writing by the terms of which appellee undertook and agreed to furnish the material and labor necessary to construct a certain highway in the state, which improvement was designated as federal aid project No. 65, section B, extending from the city of Princeton in a northerly direction. Said contract was entered into by said parties after due and legal advertisement, and was let to appellee as the lowest and best bidder.

The defendant state highway commission had a corps of engineers, the chief of whom told appellee, on February 19, 1924, to proceed with the construction of said improvements in accordance with the terms of his contract. Thereupon appellee assembled his machines, tools, plants, and labor at the site of said improvement project and made all necessary arrangements and preparations to begin the construction thereof. In order to carry out said contract, of which the highway commission knew, it was necessary for appellee to have considerable equipment, consisting of tools, scrapers, levelers, wagons, mixers, and other like equipment, some of which he then owned and some of which he rented for the particular purpose, and such renting was had at a rental expense of $210 per day, which rental was to begin simultaneously with the beginning of said construction and end upon the completion thereof. Instead of hiring a superintendent, appellee did the superintending of the work himself, and the reasonable value thereof was $10 per day.

In order properly to carry on said work, he did, during the entire time, rent and maintain an office in Evansville, with proper and necessary office help, and all such overhead expenses, wages, and salaries were required to be paid by him whether or not construction was continued or delayed, which amounted to $20 per day. Appellee leased grounds for the location of his construction camp and his equipment and had railroad sidings and switches put in for use in such construction.

On March 26, 1924, the commission, by its chief engineer, told appellee to receive shipments of cement and other material, and to have his equipment installed ready to begin laying pavement not later than April 15, 1924; and in pursuance of said order he ordered cement and other material, and in all things prepared to commence work according to the contract.

Under said contract it was the duty of said commission to furnish the right of way for said highway, but it, at divers times, failed, neglected, and refused to secure any right of way so that the work on construction could go on, though often requested by appellee so to do; and, wholly on account of such failure, neglect, and refusal of the commission to furnish the right of way, his overhead expenses went on and his equipment lay idle, and because thereof he was forced to suffer a total necessary loss and expense of $22,777.21 in pay roll, rents, and overhead expense.

When appellee reached a certain point on said highway with his grading, it was discovered that the engineer in charge, through negligence and error, had made a mistake and required appellee to make a fill of seven inches in excess of the proper depth, but that after said fill had been made, said engineer discovered his mistake and appellee was required by said engineer to remove said excess of seven inches of dirt, and because thereof he suffered a total loss of $436.11. At one place said engineer had so fixed his stakes that had said right of way been graded and paved in accordance therewith it would have been impossible to keep said paving, shoulders, and ditches on the right of way which had theretofore been obtained by said commission, and because of the delay occasioned thereby, appellee was damaged $276.92.

That each and all of the delays and errors in the construction on said work, as specifically set out, was wholly without any fault on the part of appellee, but due wholly to the failure, neglect, and refusal of said commission to obtain said right of way, and said errors and negligence of said engineer in charge; said commission at all times before the beginning of said construction and during the progress thereof had full knowledge of not having the right of way, and of the hindrance, delay, and damages suffered by appellee.

There is due appellee from defendants on account of said breach of said contract (as we compute) $21,054.13, which defendants have failed to pay, or any part thereof, for which appellee demands judgment.

Appellant's demurrer to the complaint for want of facts was overruled, and thereupon appellant filed its answer in four paragraphs. The first was a denial, the second averred payment of the total amount due on the contract, and the third averred that appellee and appellant, through the highway commission, entered into a contract for the construction of a certain part of the highway as alleged in the complaint. By express provision of the contract the standard specifications on file in the offices of said commission as provided by statute were made a part of said contract, which standard specifications are by exhibit a part of the complaint.

By express provision of said specifications appellee was invited to examine carefully the site of the work contemplated in the contract, and it was expressly provided that appellant, through said commission, should assume that appellee had judged for and satisfied himself as to the conditions to be encountered, as to the character, quality, and quantity of work to be performed and materials to be furnished.

Appellee did examine the site of the proposed work and knew, or had the means of knowing, the facts as to the ownership of all land included in the proposed improvement and any easements on and over said land, and by reason of such facts he had knowledge that appellant, through said commission, had not acquired an easement for the location of said highway on the land as proposed in said contract and in the records and files of said commission.

Notwithstanding the fact that appellant, through said commission, had not acquired all of the right of way for the location of said improvement, and with full knowledge of such fact, appellee entered into said contract and undertook the work contemplated therein. By express provision of said specifications, it was provided that the chief engineer of said commission should have the authority to suspend all or any part of the work when in his opinion conditions were such that the work could not be done properly, in which case appellee was required to store all materials, provide adequate drainage, and take such other precautions as to protect the work already done and to protect the traveling public.

By express provision of said specifications, it was further provided that when the work should be delayed or suspended through no fault of the contractor, the director should allow a reasonable extension of the time for the final completion of the contract, and that in case of suspension of the work the extension should be in direct proportion to the length of time during which the work was so suspended.

It was further expressly provided in said contract that the compensation provided therein should constitute full payment for the work indicated complete in place including the furnishing of all materials, tools, machinery, equipment, labor and work incidental thereto, as well as any and all expenses incurred by reason of any cause whatever except as otherwise provided in said specifications and contract. Notwithstanding said provisions, appellee entered into said contract and undertook the work as proposed therein and with the full knowledge that all of the right of way had not been procured over the line of said highway as proposed in the plans and specifications therefor; that said contract contained no provision fixing the time for the procuring of said right of way; and that notwithstanding said fact, appellee so entered into said contract, undertook the work therein, and accepted the provisions of said contract above referred to as to the extension of time caused by delays, and said contract was extended from time to time by appellant through the highway commission.

From time to time as provided in said specifications, appellee accepted monthly estimates as the work progressed, and upon the completion of the work he accepted the final estimate and a voucher was executed...