United States Fidelity & Guaranty Co. v. Board of Com'Rs

• Decision Date: 17 February 1919
• Docket Number: (No. 118.)
• Parties: UNITED STATES FIDELITY & GUARANTY CO. et al. v. BOARD OF COM'RS OF SEWER IMPROVEMENT DIST. NO. 1 OF BLYTHEVILLE.
• Court: Arkansas Supreme Court

Page 88

209 S.W. 88

UNITED STATES FIDELITY & GUARANTY CO. et al. v. BOARD OF COM'RS OF SEWER IMPROVEMENT DIST. NO. 1 OF BLYTHEVILLE.

(No. 118.)

Supreme Court of Arkansas.

February 17, 1919.

Appeal from Mississippi Chancery Court; Archer Wheatley, Chancellor.

Action by the Board of Commissioners of Sewer Improvement District No. 1 of Blytheville against the United States Fidelity & Guaranty Company and others. From the judgment rendered, all parties appeal. Affirmed.

Lamb & Frierson, of Jonesboro, and William M. Hall, of Memphis, Tenn., for appellants. A. G. Little and P. A. Lasley, both of Blytheville, for appellee.

SMITH, J.

Sewer improvement district No. 1 of the city of Blytheville was formed in 1912 to construct a sewer system for that city, and Messrs. Lange, Mahan, and Fields were appointed commissioners. These commissioners employed R. C. Huston, a civil engineer of Memphis, Tenn., to prepare plans and specifications for the district, and the plans thus prepared were submitted to Hiram Phillips, a civil engineer of St. Louis, Mo., who was at the time the consulting engineer for the waterworks system of Blytheville. Huston redrafted his plans to conform to the suggestions made by Phillips, and the numerous engineers who have testified in this case agreed that these plans were practical and substantial, and, having been properly executed, should have given the district a good and sufficient sewer system. The contract for the construction of the improvement was let on August 27, 1914, to appellant A. C. Brooks, but on account of the difficulty experienced by Brooks in obtaining a surety the contract was not actually entered into until April 1, 1915, and the bond guaranteeing its faithful performance was filed April 15, 1915. This bond was executed by the appellant surety company.

The specifications for the improvement were very elaborate, and provided that in case of delay beyond the period permitted by the contract the contractor should pay $50 per day as liquidated damages for each and every day the work remained incomplete; but this provision appeared only in the specifications, and not in the contract, nor in the bond.

Huston gave this work only supervisory attention, and placed in immediate charge of of it his nephew, a young engineer of only limited experience named Gay. The construction work began about May 1, 1915, and it soon became apparent that much of the pipe would have to be laid through quicksand. The contractor and engineer appear to have known that quicksand would be encountered, but no one had anticipated the extent of this condition. On this account Huston recommended to the commissioners in all wet excavations the use of jointite, which is a patented compound, instead of cement and oakum, for sealing joints. This recommendation was not acted upon favorably, and that circumstance comes to have a very important bearing on the case. Huston testified that the refusal of the commissioners to adopt this suggestion was responsible for the failure of the system to meet the requirement of the plans to the extent to which he admitted that there was a failure. The commissioners admit this recommendation was made, but say that the jointite was much more expensive than the cement and oakum, and that they were assured by Huston that while jointite was preferable, the cement and oakum would make an air-tight joint, which was the end desired.

There is a conflict in the testimony as to whether or not the original plans and specifications provided for a by-pass. The plans contemplated pumping the sewage from a pump pit into a septic tank, where it would run into Pemiscot bayou.

The pumps were to be electric pumps. Whether originally contemplated or not, the by-pass was adopted before construction began which by-pass led out from the valve in the receiving well and ran into the bayou without going through the septic tank. This by-pass was necessary only when the pumps were, for any reason, not running, or when the septic tank was being cleaned. Gay testified that when he ran the lines and checked his levels he found that the system lacked 1.4 feet of having an outlet into the bayou into which it was proposed to discharge the sewage. This was remedied in part by reducing the entire excavation one foot less than the depth called for by the plans. The commissioners admit the authorization of this change, but deny that they consented to any other. A change in the grade of the by-pass was made, as a result of which so slight a fall existed that the sewage would back up in the main trunk line for a distance of 1,500 feet, and the responsibility for this condition is one of the subjects about which the witnesses widely differ.

After Brooks had abandoned his work the commissioners undertook to remedy this defect, and spent over $5,000 in an unsuccessful attempt to do so.

Shortly after the construction work began citizens of the town made complaint of the use of poor material and defective workmanship, and the commissioners employed one Reuter as an inspector, and there is much conflict as to the extent of Reuter's authority, and also over his acquiescence in certain methods of doing the work.

Eight civil engineers testified as experts in the case, and the irreconcilable conflict is found in their opinions which usually appears when experts are turned lose on any subject. The record is exceedingly voluminous, and we will not review it in detail.

The chancellor specifically found the fact to be that the system had never been brought to a point where it could perform in a substantial way the requirements of the contract; and we think the testimony amply supports that finding. The system had been planned to accommodate a population of 21,700, while it is virtually admitted by all the engineers that the system is inadequate for a population in excess of 7,000. The responsibility for this condition constitutes the chief question of fact.

Huston, the district's engineer, became the most stalwart witness against the district, and he attributes such failure of the system as he admits exists to the refusal of the commissioners to adopt his recommendation in laying sewer pipe. One of the chief complaints in this respect is that jointite was not used. But it appears that this was a proprietary compound, not in general use by engineers and contractors, and that expert opinion differs as to its value. It was shown, however, that jointite could be satisfactorily used only under conditions more favorable than those existing there, as it had to be heated and reduced to a fluid state and applied to a joint while hot, and engineers testified that it could not be used advantageously in the mud and water which would unavoidably be encountered there. Moreover, the plans did not call for the use of jointite, and the commissioners testified that Huston advised them that while jointite was preferable, satisfactory results would be obtained by adhering to the plans and using cement and oakum, and nearly all the experts expressed the opinion that proper joints could have been obtained by adhering to the...