State v. Road Commission , 108 W. Va. 41 ( 1929 )

The decision, to my mind, is unsound in principle and at variance with the ruling in Draper v. State Road Commission,102 W. Va. 633. The opinion brushes aside the doctrine of that case and proceeds to hold, by an unreasonable interpretation of the contract, that the contractor agreed to perform a substantial part of the work without compensation. According to this theory, in the language of the Court, "excavation below the crown of the road and the removal of stone therefrom and 'back filling' was an incident of the main undertaking to complete the road to the grade of the crown." The contract, after setting out the estimated yardage of unclassified excavation at 44c per cubic yard and other items of the proposed improvement, stipulates that the work shall be performed in accordance with plans and specifications made a part thereof. "The Standard Specifications" of the State Road Commission (which also are a part of the contract), in section 72, provides: "All soft, spongy material and all muck, quicksand, and soft clay shall be removed to the depth required by the Engineer. The surface of the entire roadway shall be brought roughly to the subgrade line as given and sufficient selected material from the excavation placed thereon, if necessary, to bring the completed surface to the proper line, grade and cross-section. Stone exceeding three (3) inches in its largest diameter shall not remain within three (3) inches of the completed surface." Section 74 reads: "This work shall be paid for at the contract unit price per cubic yard of unclassified excavation, measured in its original position, excavated and disposed of in accordance with these specifications, and the limits shall not exceed those shown on the plans or fixed by the Engineer." By this provision, the Road Commission agreed to pay the contractor for all unclassified excavation, required by the contract or the engineer, measured in its original position. The clause, "and the limits shall not exceed those shown on the plans or fixed by the engineer," means the estimated cubic yardage, shown on the plans, or the yardage finally ascertained by the engineer to have been necessarily removed by the contractor in the performance of the work. The "Construction Manual" of the State Road Commission (of 139 pages of printed matter), "prepared as a guide for the construction staff" of the Commission, contains in section 56, 58 and 60 instructions to be followed by the engineer or inspector in ascertaining the yardage of unclassified excavation under the contract, as follows: "56. STRUCTURE BOOK. One of the most important duties of the engineer or inspector is measuring, calculating and recording the quantity of work done and the history of its performance. Records of this character are kept in the structure book. These books are issued to the inspector as required and are stamped on the cover with the project number and book number. The measurements of the contract quantities are to be recorded in this book. * * * 58. CONTRACT QUANTITIES. The structure book is also the repository of the records, measuring and describing the pay quantities of work performed by the contractor. To arrive at the total number of units of work, the engineer or inspector must measure and describe by diagram or otherwise, all the pertinent facts necessary for their calculation. All these data are entered in proper form and order in the structure book, generally in accordance with the following more specific instructions. * * * 60. UNCLASSIFIED EXCAVATION. This class of work is paid for at the contract unit price per cubic yard, and the standard method of measuring the volume is by a system of original and final cross sections. For the roadway this volume is determined from the plan sections and final sections taken by the final survey party and recorded in separate books for that purpose. * * * The cross sections taken by the final survey party will show only the contour of the roadway after completion. This is sufficient to determine the volume of all the earth moved from the roadway only for a graded earth job and not always in this case. Wherever the roadway is cut through solid rock the excavation cannot follow the contour of the road as shown on the plans, for the rock is usually removed down to a level line at the elevation of the bottom of the roadway ditch, after which the section is shaped with a road machine. For this class of work the inspector shall enter a note with explanatory remarks showing the station to station limits of the work."

On the second sheet of the "Plan and Profile for the construction of" the work, appears the following:

[EDITORS' NOTE: The map IS ELECTRONICALLY NON-TRANSFERRABLE.]

This diagram, as its title shows, represents merely a "typical cross section of the improvement," completed, and does not indicate any basis of measurement for the ascertainment of the unclassified excavation yardage for which the contractor is entitled to be paid. The decision, which ignores the express terms of the agreement (as I conceive them), is, nevertheless, based upon the absence from this irrelevant diagram of a "horizontal line below the crown of the road." The presence of such line, if of the significance claimed, would not show the maximum pay line. Although it might include the necessary excavation in rock, it would not do so in earth formation, containing "soft, spongy material and muck, quicksand and soft clay." Section 32 of "The Standard Specifications," quoted in the opinion, is without bearing upon the question involved. It, as disclosed by its title, deals with "unauthorized work."

The same form of contract and diagram were involved in theDraper case. This Court, in allowing the claim of the contractor for stone removed below the crown of the road, there said: "The yardage in question falls within two general classifications: (1) material removed below the original grade line; and (2) breakage beyond the slope line of the original specifications. Practically all of the excavation being through rock of irregular formation, commonly called 'bastard limestone,' it was necessary in obtaining a smooth grade to excavate below the grade line of the original specifications. * * * Numerous witnesses testified that it was necessary in the proper performance of the work to excavate, as was done, below the grade, in accordance with the grade stakes set by the engineers representing the Road Commission, some of which, attesting the fact, are still in existence." E. N. Blackwood, inspector on the job and acting engineer for a large portion of the time while the work was being performed, states that he advised the contractor that he was required under the contract to remove the stone and that it was removed under his direction and supervision, or, at least, under his inspection and supervision.