Town of Slidell v. Temple
| Decision Date | 04 May 1964 |
| Docket Number | No. 46890,No. 1--A,1--A,46890 |
| Citation | 164 So.2d 276,246 La. 137 |
| Court | Louisiana Supreme Court |
| Parties | TOWN OF SLIDELL, Louisiana, and Sewerage Districtof the Town of Slidell, Louisiana v. Hollis R. TEMPLE, t/a Temple Construction Company, and United States Fidelity& Guaranty Company. |
David E. Cooley, Slidell, for plaintiffs-appellees-applicants.
William J. Jones, Jr., Covington, for defendants-appellants-respondents.
Suit on a contract was brought by the town of Slidell and its sewerage district as plaintiffs, against the contractor Hollis R. Temple, t/a Temple Construction Company, and his surety as defendants, for the expense incurred by the plaintiffs in repairing a failure, or breakdown, of a sewerage pipeline constructed for plaintiffs by the defendant contractor. There was judgment for plaintiffs in the trial court. On appeal the judgment was reversed. We granted certiorari.
The contract in question called for the construction of a sewerage disposal line in the city of Slidell. That portion of the line involved here runs generally in a north-south direction. It is a gravity flow line with the downflow to the north.
In the course of the construction, the contractor encountered water-bearing sand at a location on Highway 11 near its intersection with Kostmayer Avenue. In order to provide a firm base for the fifteen-inch vitrified clay pipe being installed at a depth of about ten feet, the contractor dug well points to dewater the sand. When the foundation was thoroughly dry the line was laid and the necessary indentations were dug to accommodate the protruding bell joints of the pipe. What this means is that each section of the pipe was fashioned on one end in a bell shape to accommodate the end of the other section and thereby provide a continuous unbroken barrel within the pipe, and, at the same time the bell-shaped end of the pipe permitted firm jointing of the pipe. The indentations for the bell joints enabled the pipe to maintain complete contact with the sandy foundation along its entire length.
The pipe joints were required to be sealed first by compressing a length of fiber called oakum within the bell joint and thereafter by pouring a hot asphalt mixture into the joint to complete the seal. This was done but unfortunately the evidence does not disclose whether the joints in question were inspected, or whether an inspection would necessarily disclose all faults in such a seal.
The trench in which the pipe was installed was then backfilled and tamped. The line was put into service in October 1959, and a prior existing eight-inch subdivision line was tied into the system at a manhold upflow and just south of the point in question.
The line was formally accepted by the town in April 1960.
In December 1960, about fourteen months after the line was in use, a sinking of the surface soil was noticed at the point of eventual failure.
About five weeks later the line collapsed and failed completely. Defendants, the contractor and his surety, were promptly notified, but failed to take any action.
Meanwhile, the town was compelled to pump raw sewerage into open ditches, but, due to the health menace involved in this procedure, and the refusal of defendants to take any action, it was necessary to employ another contractor, C. C. Ouder, to excavate at the point of failure and to expedite the necessary repairs.
This excavation disclosed that about five sections or lengths of pipe had settled or sunk to a maximum depth of about eighteen inches. The pipe was not crushed; it remained intact except for one or two joints where the bell had broken on its upper circumference. There was cavitation in the sand surrounding the pipe at the point of failure.
The pipe to the south (upflow) of the point of failure was clear of sand, as was the manhole into which the existing eight-inch line had been connected, but to the north (downflow) from the failure the pipe contained a heavy deposit of sand for a considerable distance.
In his effort to remedy the situation, Ouder worked for several days with cable and tractor to free the line of sand. He was unsuccessful and the town engaged the service of the Roto-Rooter Company for this phase of the work.
Eventually, the repairs were completed and paid for by the town, the total actual costs being $5,199.53.
Only one question is presented, and that is a question of fact: What caused the sewer line to fail? The plaintiffs contend that the failure was due to one thing--a defective or imperfectly sealed joint. The defendants, on the other hand, contend that the failure of the pipe was due to one or all of several causes--inadequate contract specifications in that they did not provide for reinforcing the foundation in the water-bearing sand strata and this deficiency caused the collapse of the line; or heavy rainfalls caused the failure; or the pipe specified for the project was not of sufficient strength; or sand from the eight-inch line accumulated in the line blocking the flow and the weight of the sand, together with the presure caused by the blocked liquid in the line, caused the line to fail or 'blow out'.
The trial court resolved the issue in plaintiffs' favor finding that the pipes were imperfectly sealed, permitting sand seepage into the pipe through a leak in the joint. This flow of sand into the pipe from the water-bearing sand foundation, the court found, brought about cavitation which undermined the pipe's foundation resulting in settling and the failure of the system at that location.
The court of appeal, after reviewing the evidence, concluded that plaintiffs must 'establish his cause by a fair preponderance of the evidence', and, finding that it was not established by a fair preponderance of the evidence that the failure in the sewerage line resulted from a defective joint, plaintiffs' demands were rejected.
The law of Louisiana requires plaintiffs to make out their case by a fair preponderance of the evidence. Iennusa v. Rosato, 207 La. 999, 20 So.2d 467 (1945); Perez v. Meraux, 201 La. 498, 9 So.2d 662 (1942). By a preponderance of evidence is meant, simply, evidence which is of greater weight, or more convincing, than that which is offered in opposition to it. Coltharp v. Hearin Tank Lines, Inc., 239 La. 445, 118 So.2d 881 (1960); Edwards v. Shreveport Creosoting Co., Inc., 207 La. 699, 21 So.2d 878 (1945); 32 C.J.S. Evidence § 1021. It would appear unnecessary to mention that a fact may be established by circumstantial as well as by direct and positive proof. Lemann Co., Ltd., v. Texas & Pacific Railway, 128 La. 1089, 55 So. 684 (1911); Tuten v. Shell Oil Co., La.App., 26 So.2d 757 (1946); 4 La.L.Rev. 70 (1941); cf. Naquin v. Marquette Casualty Co., 244 La. 569, 153 So.2d 395 (1963); Perkins v. Texas and New Orleans Railroad Company, 243 La. 829, 147 So.2d 646 (1962).
In the trial of civil cases, therefore, the concern is not for proof beyond a reasonable doubt but, rather, the requirement of proof may be satisfied with a preponderance of probabilities reasonably to be inferred from physical facts clearly established. Pohl v. American Bridge Division, U.S. Steel Corp., La.App. 109 So.2d 823 (1959).
It should be remembered, too, that where a trial court has made a finding of fact its judgment will not be upset on appeal unless deemed manifestly erroneous by the appellate court. This is a venerable rule of law in Louisiana.1 cf. Gaspard v. Le Maire, 245 La. 239, 158 So.2d 149 (1963). It has even been said that where irreconcilable facts are presented 'an appellate court will not reverse the judgment of the trial court, if the evidence of the successful party, when considered by itself, is sufficient to sustain the judgment.' Rhodes v. Sinclair Refining Co., 195 La. 842, 197 So. 575 (1940).
This court is of the opinion that plaintiffs have discharged the burden of proof imposed upon them by law.
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