Walb Const. Co. v. Chipman

• Decision Date: 04 March 1931
• Docket Number: No. 25348.,25348.
• Citation: 175 N.E. 132,202 Ind. 434
• Parties: WALB CONST. CO. v. CHIPMAN, Const. Com'r, et al.
• Court: Indiana Supreme Court

202 Ind. 434

175 N.E. 132

WALB CONST. CO.

v.CHIPMAN, Const. Com'r, et al.

No. 25348.

Supreme Court of Indiana.

March 4, 1931.

Appeal from Lake Circuit Court; H. B. Tuthill, Special Judge.

Proceedings by A. Byron Chipman, Construction Commissioner, etc., and the City of Crown Point, against the Walb Construction Company. Judgment for plaintiffs, and defendant appeals.

Affirmed.

Louis B. Ewbank, of Indianapolis, for appellant.

Bruce & Bruce and Geo. E. Hershman, all of Crown Point, for appellees.

ROLL, J.

This was a proceeding by the appellees construction commissioner and the city of Crown Point, a party assessed for the construction of Beaver Dam ditch No. 3, against the appellant contractor, engaged in constructing said drain, to require the contractor to substitute heavier and stronger tile for the tile he was putting in certain parts of laterals No. 3 and No. 15. To the written statement of objections filed by the appellees, the contractor answers by a denial and a special plea.

The trial court made a special finding of facts on which it stated conclusions of law to the effect that the contractor should be required to provide title having the degree of supporting strength required by table No. 2 of the American Society for Testing Materials, for the year 1914 as amended in 1916; and it rendered judgment requiring and ordering the contractor to provide and lay drain tile for laterals No. 3 and No. 15, having such degree of strength.

Appellant's assignments of errors, are as follows: (1) The trial court erred in each of its conclusions of law upon its special finding of facts made and filed on the 16th day of October 1926; and (2) the trial court erred in overruling appellant's motion for a new trial. The causes relied upon and stated in the motion for a new trial are: (1) The decision of the court is contrary to law; and (2) the decision of the court is not supported by sufficient evidence.

Certain findings of the special finding of facts are, in substance, as follows:

Finding No. 5. That said drain consists of a drainage system, comprising a main ditch and sixteen laterals; that it consists of open ditches, most of which was outside of the corporate limits of the city of Crown Point, and tile ditches; that most of the work of constructing said drain has been performed and completed by the contractor except laterals No. 3 and No. 15 thereof, respecting which this litigation has arisen.

Finding No. 6. That lateral No. 3, according to the plans and specifications, was to be constructed and to consist of a salt glazed vitrified tile as to its entire length, except as to 4,235 feet thereof, which was to be constructed of concrete tile, and 143 feet thereof, which was to be constructed of reinforced pipe; only that part of said lateral No. 3 that was to be salt glazed vitrified tile is involved in this matter; that said lateral No. 3 was divided into stations of 100 feet each, and consists of 113 plus 44 stations; from station 43 plus 75 to station 65, the same was to be constructed of 30-inch salt glazed vitrified drain tile; from station 65 to station 95, of 27-inch salt glazed vitrified drain tile; from station 95 to station 113 plus 44, of 24-inch salt glazed vitrified drain tile.

Finding No. 7. All of lateral No. 15 according to the specifications was to be constructed of vitrified salt glazed tile; that from station 0 to station 20, 27-inch tile was to be used, and from station 20 to station 37 plus 50, 22-inch tile was to be used, and from station 37 plus 50 to station 42 plus 74, 18-inch tile was to be used.

Finding No. 8. Laterals No. 3 and No. 15 are situated, for the most part, within the corporate limits of the city of Crown Point. Only 950 feet of lateral No. 15 with the whole of lateral No. 3 are here involved.

Finding No. 11. That at the time this ditch was established by order of court certain written specifications, stating the manner in which the work was to be done, and the character of the materials to be used, were adopted, which became a part of the contract of construction between the construction commissioner and the defendant. Said specifications, as far as they are material to the questions here involved, are, in substance, as follows: That the tile in laterals Nos. 1, 2, 3, 4, 5, 6, 10, 12, 13, 14, 15, and 16 to be clay drain tile, except where cement tile was specified. In laterals No. 3 and No. 15 vitrified salt glazed tile was to be used, except where cement tile was specified.

Under the heading “Clay Drain Tile,” the specifications provide:

“All tile as above specified as clay drain tile shall be known as Standard Drain Tile (our italics). They shall conform to the requirements of the American Society for Testing Materials, revised Standard Specifications, adopted 1914.”

“All tile shall be sufficiently hard burned or vitrified to afford the degree of support strength percentage of absorption, and resistance to freezing and thawing as specified in the physical test requirements as prescribed in the above named Standard Specifications.”

Finding No. 12. That the depth of laterals No. 3 and No. 15, as shown upon the profile, vary from 2 feet to 13.8 feet.

Finding No. 18. Accompanying the standard specifications were three tables, only two of which apply to the questions here involved, and, so far as they apply to this case, are, in substance, as follows: Table No. 1 purports, among other things, to give the minimum support strength required for farm drain tile, standard drain tile, and extra quality drain tile, of various dimensions. The supporting strength for farm drain tile of more than 16 inches in diameter is not given. For standard drain tile the supporting strength for tile 18 inches in diameter is given as 1,400 pounds per lineal foot, and for extra quality drain tile as 1,800 pounds per lineal foot; for standard drain tile, 22 inches in diameter, 1,600 pounds per lineal foot, and for extra quality drain tile 2,200 pounds per lineal foot; for standard drain tile 24 inches in diameter, 1,700 pounds per lineal foot, and for extra quality drain tile 2,400 pounds per lineal foot; for standard drain tile 27 inches in diameter, the supporting strength is not given, neither is it given for extra quality drain tile; for standard drain tile 28 inches in diameter, 1,900 pounds per lineal foot, and for extra quality drain tile, 2,800 pounds per lineal foot; for standard drain tile 30 inches in diameter, 2,000 pounds per lineal foot, and for extra quality drain tile 3,000 pounds per lineal foot.

Table No. 2 purports to give the supporting strength per lineal foot that tile should have where placed at various depths and in ditches from 1 to 5 feet wide at the top of the tile, or the weight per lineal foot, that will be placed upon tile, placed at various depths, in a ditch, 1, 2, 3, 4, and 5 feet wide at the top of the tile and back-filled with either sand or clay filling. According to this table, a tile placed in a ditch 2 feet wide at the top of the tile, and when clay is used as back-filling, and when placed at various depths, should have supporting strength as follows: 2 feet deep, 280 pounds per lineal foot; 4 feet deep, 450 pounds per lineal foot; 6 feet deep, 545 pounds per lineal foot; 8 feet deep, 605 pounds per lineal foot; 10 feet deep, 640 pounds per lineal foot; 12 feet deep, 660 pounds per lineal foot.

When placed in a ditch 3 feet wide at the top of the tile, and clay is used to back-fill, said tile should have a supporting strength as follows: 2 feet deep, 990 pounds per lineal foot; 4 feet deep, 1,820 pounds per lineal foot; 6 feet deep, 2,530 pounds per lineal foot; 8 feet deep, 3,110 pounds per lineal foot; 10 feet deep, 3,610 pounds per lineal foot; 12 feet deep, 4,030 pounds per lineal foot.

Finding No. 27. The court finds that the earth where the tile in question was being laid did in fact consist of clay.

Finding No. 19. That the tile furnished by the defendant was standard drain tile, and did conform in all respects to the physical test requirements of the American Society for Testing Materials, as shown and prescribed by table No. 1, but did not have the supporting strength as required by table No. 2.

Finding No. 25. The court found, in substance, that, while the work of laying tile was progressing, it was found that some of the tile had cracked in the ditch, and the engineer of construction procured four samples of the tile and forwarded them to Purdue University to be tested as to their supporting strength. The result of said test was as follows: One 28-inch tile, supporting strength 2,955 pounds per lineal foot; one 28-inch tile, supporting strength 2,707 pounds per lineal foot; one 26-inch tile, supporting strength 1,920 pounds per lineal foot; one 26-inch tile, supporting strength 2,222 pounds per lineal foot. That the test of said samples showed that they exceeded the minimum support strength, as prescribed by table No. 1 of the standard specification, American Society for Testing Materials. That, after the engineer learned of the test so made, he announced to the contractor that the tile he was using conformed to the specifications, and the fault, if any, was that of the engineer who designed the work, in not providing the proper tile, and notified said contractor to proceed with the work. That subsequently said engineer learned of his error and learned upon further investigation that table No. 2 of the standard specification did give the weight of the load required to be carried by the tile placed in the trench, and that the tile furnished by the contractor did not have the necessary supporting strength to carry the required load.

[1] The error assigned on the overruling of appellant's motion for a new trial calls in question the sufficiency of the evidence to sustain the findings. Where there is substantial evidence to support the findings, they will not be disturbed on appeal. Coon v. Cronk (1892) 131 Ind. 44, 30 N. E. 882;State ex...