Trinity Universal Ins. Co. v. Town of Speedway, No. 19974

• Docket Nº: No. 19974
• Citation: 137 Ind.App. 510, 210 N.E.2d 95
• Case Date: September 14, 1965
• Court: Court of Appeals of Indiana

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]

Page 96

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

Page 97

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...