W. H. Knapp Co. v. State

• Decision Date: 09 April 1945
• Docket Number: No. 9.,9.
• Citation: 18 N.W.2d 421,311 Mich. 186
• Parties: W. H. KNAPP CO. v. STATE et al.
• Court: Michigan Supreme Court

311 Mich. 186

18 N.W.2d 421

W. H. KNAPP CO.

v.STATE et al.

No. 9.

Supreme Court of Michigan.

April 9, 1945.

Proceeding in the court of claims by the W. H. Knapp Company against State of Michigan and State Highway Department for balance due plaintiff under highway construction contract. From an order allowing claimant $64,962.41, the defendants appeal.

Affirmed.

Appeal from Court of Claims; Charles O. Arch, Judge.

NORTH, WIEST, and BOYLES, JJ., dissenting.

Before the Entire Bench.

Herbert J. Rushton, Atty. Gen., Edmund E. Shepherd, Sol. Gen., of Lansing, and Meredith H. Doyle and A. Floyd Blakeslee, Asst. Attys. Gen., for appellants.

Shields, Ballard, Jennings & Taber, of Lansing, for appellee.

REID, Justice.

This is an appeal by defendants from an order of the court of claims allowing $64,962.41 as the balance due plaintiff because of the construction of 7.532 miles of highway grading and drainage structures in Chippewa and Mackinac counties. On January 4, 1939, the State highway department advertised for proposals concerning this project, the proposals to be opened at 10 a. m., January 18, 1939, at Escanaba, which advertisement came to the notice of Mr. Knapp, officer and agent of plaintiff, on January 7, 1939. As soon as practicable, he made a trip to the site of the project, which was to be a new highway through wooded territory, and spent a part of two days observing the territory involved. At that time the trees had been cut down and the ground was covered with a foot of snow. Mr. Knapp noted the top of the surface soil and observed numerous large boulders protruding through the snow, found some of the pits which the employees of the State had made to ascertain soil conditions, and noted the soil at the bottom of those pits. Plaintiff made a bid, received a contract, and now claims that it was misled by misrepresentations as to the character of the soil, and found that the construction was more difficult and more expensive because of the difference in the soil conditions between that represented in the plans and specifications submitted by the State and that found in the progress of the work. Plaintiff claims that it encountered indurated material at locations where the specifications indicated loam, and that much of the material it encountered (whether classifiable as indurated or not) was more difficult to excavate than that which was indicated in the specifications.

Plaintiff does not count on tort, hence the doctrine of sovereign immunity does not bar its claim. A discussion of the principle of sovereign immunity as applied to similar facts is to be found in Hersey Gravel Co. v. State Highway Department, 305 Mich. 333, at page 339, 9 N.W.2d 567. Plaintiff does not seek to void the contract but claims additional sums because of difficulties in excavation greater than those indicated in the specifications.

Defendants' definition of the issues indicates two questions of fact: 1. Did the soil notations on the plans prepared by the State highway department indicate to an experienced contractor that in excavating this roadway in the upper peninsula he would meet with no difficulties due to indurated materials? 2. Did the plaintiff contractor when excavating this roadway encounter such indurated material as should, under the specifications, have been classified as rock? Defendants submit further a question of law, whether this court should reverse a judgment rendered in the court of claims as against the preponderance of evidence under court rule No. 64.

Plaintiff relies on the decision in the Hersey Case, supra. Mr. Knapp, acting for plaintiff in this case, found himself in a situation similar to that of plaintiff in the Hersey Case, in that by reason of the brevity of time between the notice to bidders and the date for receipt of bids, he was compelled to make a hurried inspection of the route of the proposed highway under unfavorable winter conditions, and to rely on the information given him by the department. The blueprints in the instant case contained a recital warning the bidders to examine the site and not rely on soil notations on the plans, similar to the words used in the blueprints in the Hersey Case. In respect to examination of soil conditions plaintiff in this case was not in a situation more favorable to itself than was the plaintiff in the Hersey Case.

In 1937 the State caused an examination and survey of the route of the proposed highway, and various borings or pits, to be made, and tests applied to determine the character and nature of the work required. This information was in the office of the State highway commission but was not shown to plaintiff nor set forth in full detail in the specifications. Mr. Herbert Dunsmore, an engineer employed by the State, was asked to make a soil survey of the route of the proposed highway, which he began some time in February, 1937. He testified, in part, that with an assistant he obtained 15 WPA workers on February 15, 1937, and the force worked during part of the remainder of February and part of March, sometimes with 50 laborers; that the force completed a soil survey the same year; that the procedure was to take an inch and a half soil auger four feet long, which could be extended by adding pipe, with which they took borings on the center line of the right of way, usually every 200 feet; at every six inches of boring the auger was pulled out, and operation continued to desired depth; the first thing he did was to investigate the sections where a cut was to be excavated and there they started by digging out a hole about four feet by six feet and two feet deep; sometimes it was then easier to drive down rods or bolts used for construction of boats; that as far as the bolts could be driven they knew there was no ledge rock; that notes indicating on the plans ‘Detour stony loam,’ ‘Eastport sand,’ etc., were sent by the witness to chief soils engineer Matthews, who afterwards walked with witness the entire length of the job.

Mr. Dunsmore testified, ‘The term ‘loam’ only indicates that the soil is made up of material of even parts-sand, silt, and clay. None of those materials are predominant. In other words, it is what we call a uniform mixture which makes a very dense soil and it is the only test.'

He further testified that indurated material could be classified as a material that is ‘metamorphosed’ by heat and pressure. He testified further, ‘Driving a steel rod into the ground would never give you a soil type, that is for rock soundings; then * * * where I drove a steel rod into the ground, in those cuts, they didn't give me any information as to soil classification. We would take a soil auger and determine the various horizons of soil down for at least three and a half feet. * * * When * * * (the rod) hit a piece of limestone rock it would bend around it and would have to. I left the rod right in there in this bent condition and they excavated it on the job, I understand. * * * I knew that below a given depth that there was a continuous mass of material such as Exhibit 15 as found in its natural state. Anyone, I suppose, that was a soils engineer with my training and experience would know the same thing. * * * There was no explanation of that on the plans except to merely label ‘Detour stony loam’ or ‘sandy loam’ or something of that sort. That was the explanation. What I mean by that is, if I were remaking this soil survey, in the light of all the evidence we know now, I would still call it exactly the same thing which it is.'

Mr. George Foster, who was employed by the State highway department from 1922 until 1935, during which period he was, successively, draftsman, project engineer, designer, resident engineer, chief draftsman on bridge design, and assistant bridge engineer in charge of construction, testified that he had had available and had made a study of the plans upon which the bidding was based on the project in question, and had reviewed them in considerable detail. He further testified in part,

‘The plans indicate at station 384 what is termed ‘Bergland clay’ and farther on in the cut a ‘Detour stony loam.’ We found an indurated material containing rock, which was very hard and might be considered as cemented together, particularly in the lower portion of the cut. The surfaces and the surface soil agreed in general with the plan indication. The surface was either ‘Bergland clay’ or ‘Detour stony loam’ as we got farther along. In making the excavation for this cut, the contractor would encounter a different character of material than the plans indicate. * * * Station 402 to station 413, plus 50, was another cut, through which, from station 410 to 413, plus 50, we have indicated an average of two feet of hard indurated material containing rock above planned grade line, that was not a uniform two feet but the average would probably be above two feet. The below grade material, or the extra foot which he was required to excavate between those stations. It was all of a hard indurated material similar to that first mentioned. The plans represent that to be Detour stony loam through this * * * The next cut begins at approximately station 446 and continues through various depths to approximately station 468. Through that area the plans indicated ‘Detour stony loam.’ We found that the lower portion of the cut from 446 to 453 was a very hard material similar to that previously described as indurated. We found rock between stations 453 and 455 and between stations 459 and 467 we found indurated material again at an average depth of about four feet. The representation was ‘Detour stony loam.’ I took a sample of that ‘Detour stony loam’ as I found it on the surface.

‘Q. I show you Exhibit 18 and ask you if that is that sample of ‘Detour stony loam’ as you found it there? A. We consider it as such, yes. * * * We took these samples, this one as well as others, by digging down through the material forming the surface of the cut area....