Trinity Universal Ins. Co. v. Town of Speedway, 19974

• Decision Date: 14 September 1965
• Docket Number: No. 19974,No. 2,19974,2
• Citation: 137 Ind.App. 510,210 N.E.2d 95
• Parties: TRINITY UNIVERSAL INSURANCE COMPANY and Allied Paving Corp., Appellants, v. TOWN OF SPEEDWAY and Phillip Development Corp., Appellees
• Court: Indiana Appellate Court

Page 95

210 N.E.2d 95

137 Ind.App. 510

TRINITY UNIVERSAL INSURANCE COMPANY and Allied Paving Corp. Appellants, v. TOWN OF SPEEDWAY and Phillip Development Corp., Appellees.

No. 19974.

Appellate Court of Indiana, Division No. 2.

Sept. 14, 1965.

[137 INDAPP 511]

Erle A. Kightlinger, Howard J. De Trude, Jr., Indianapolis, for appellant Allied Paving Corp.

Hugh E. Reynolds, Indianapolis, for appellant Trinity Universal Ins. Co.

[137 INDAPP 512] Ruchelshaus, Bobbitt, & O'Connor, Dann, Backer & Pecar, Roberts & Ryder, Indianapolis, for appellees.

SMITH, Judge.

This action was brought by the appellees against the appellants to recover damages on a maintenance bond for the construction of sewers and streets and for the alleged breach of a maintenance contract on the part of the appellant Allied Paving Corp.

The appellees' complaint contained two paragraphs, the first was filed against both the Trinity Universal Insurance Company and the Allied Paving Corp. alleging therein that the appellee, Phillip Development Corp., and the appellant, Allied Paving Corp., entered into a contract whereby the latter contracted to install and construct storm sewers, sanitary sewers, house sewer connections, road gradings and streets and sidewalks in the Town of Speedway. The complaint further alleged that Allied Paving Corp. was required to furnish a performance bond running to the Town of Speedway, and also to furnish a maintenance bond running to the Town of Speedway, which maintenance bond was to extend for a period of one year following the completion and acceptance of the work. The complaint further alleged that the appellant, Trinity Universal Insurance Company, did furnish a performance bond and a maintenance bond and, that by virtue of said bonds, became a surety. The complaint further alleged that within one year following the completion of the work contracted for, the streets became cracked and the appellants refused to repair them and that the appellees were damaged in the amount of $50,000.00.

The second paragraph of the complaint was directed solely to the appellant, Allied Paving Corp., and again alleged the fact of the contract which required Allied [137 INDAPP 513] Paving Corp. to perform the work in a good and workmanlike manner and provided further that the Allied Paving Corp. did agree to remedy all defects due to faulty material and workmanship which might appear within one year following the date of the completion of the contract. The second paragraph further alleged that defects appeared within one year following the date of the completion of the contract, which defects were caused by Allied Paving Corp.'s failure to provide sufficient compaction to the sub-grade of the street before applying the final surfacing, and the failure to allow sufficient time for the drying and settling of the sub-grade before applying the final surfacing.

The case was tried by jury, which returned a verdict for the appellees in the sum of $26,900.00 and judgment was thereafter entered in accordance with the verdict.

The sole assignment of error is the overruling of the motion for new trial. The appellants have set forth four specific errors in their brief upon which they rely for reversal. They failed to discuss the remaining specifications contained in the motion for new trial and in compliance with Rule 2-17 of the Supreme Court they are hereby deemed to be waived.

The appellants contend that the court erred in failing to strike out the testimony of one Edwin C. Kridler, the Twon Engineer for the Town of Speedway, after he had testified to the cost of making the necessary repairs to the street. The appellants allege that Kridler attempted to qualify as an expert witness and, on rebuttal, he testified that in arriving at an opinion of the estimated cost of repairing the street he had consulted with the representatives of the Indiana Asphalt Paving Company, the Portland Cement Concrete[137 INDAPP 514] Association, and of Roadways, Inc.; and, since none of these representatives were called to testify, the testimony of Kridler was based on hearsay and was improperly admitted.

In resolving this alleged error it is necessary to examine the witness' entire testimony. Kridler testified that he was the Town Engineer, that his duties involved the general maintenance of the town, the overseeing of the general operation of the sewage works, the streets, the drainage, and all other general maintenance. He detailed his qualifications and background in order to qualify as an expert, and in so doing, testified that he was a graduate of Indiana Technical College and had been employed in various positions which required engineering experience. As part of his direct examination Kridler testified as follows:

'Q. Mr. Kridler, in your position as Town Engineer, do you have occasion to know what the costs of materials are for street improvements?

'A. Yes.

'Q. Will you state whether or not, as a part of your duties, you are required to design and estimate costs of street improvements for the Town of Speedway.

'A. Yes.'

Kridler further testified that he was personally familiar with the streets in question, had measured the defective areas, and had made an extensive investigation of the various methods which could be employed to repair the failures in the streets. He testified that he had computed the number of square yards of area which required repairs and had calculated the number of tons of concrete which would be required to carry out such repairs. He related in detail three different [137 INDAPP 515] methods which could be followed in making repairs and stated the manner in which his calculation for the cost of the repairs had been computed for each method. Kridler finally testified that his estimate of the costs was 'arrived at from my experience and consultation, and, as near as I can determine from an engineering estimate, it is correct.'

[2, 3] In light of this testimony it is the opinion of this Court that the appellants' contention that this witness' testimony was based on hearsay is without merit. In his capacity as Town Engineer of the Town of Speedway and also as an expert witness, Kridler could draw upon all sources of information coming to his knowledge or through the results of his investigation in order to enable him to formulate an opinion regarding the costs of repairs. The fact that he consulted with other individuals does not render his...