Mayor & City Council of Baltimore v. M. A. Talbott Co.

²²⁷ Pattison, J., delivered the opinion of the Court. The suit in this ease arises out of a written contract made on the 22nd day of September, 1909, by The M. A. Talbott Co., Incorporated, with the City of Baltimore, executed on behalf of the city by the members of the Sewerage Commission and J. Barry Mahool, its Mayor, for the building and construction of a section of the Sanitary Sewer in said city, known as Section No. 1 of Jones Palls, Interceptor. The amended declaration, filed June 20th, 1912, sets out the contract signed by the parties thereto, not including the specifications which were by the contract made a part of it, but as stated in the brief of the appellee, the parties to this suit have agreed that such specifications shall be considered and treated as embraced within the declaration. The declaration then charges the defendant with a breach of the contract in that “It did wrongfully require the plaintiff to do the rock excavation provided for in said contract and specifications in a manner materially different from that called for hy said contract and specifications, by changing the person or persons designated in said contract to act as inspectors of blasting, over the protest of the plaintiff, and by compelling the plaintiff to use such small charges and radically different methods in the blasting operation, contrary to said contract and specifications, as to seriously and wrongfully hinder and delay the plaintiff from carrying on the rock excavation required under said contract to be performed.” A demurrer filed to the declaration being overruled, a bill of particulars was asked for and filed, in which the amount of six hundred and forty-two dollars and thirty-six cents ($642.36) was claimed for “unpaid balance of contract price certified by the engineer, designated in said contract as due by the defendant- to the plaintiff,” in addition to items of loss alleged to have been sustained by the plaintiff.

Exceptions were filed to the bill of particulars but these were overruled. The defendant then pleaded: (first), that it ²²⁸ never promised as alleged; (second), that it was never indebted as alleged; and (third), that the contract, which is set forth in the declaration, provides as follows: “44. In all operations connected with the work, all ordinances of the City of Baltimore and all laws of the United States and the State of Maryland, which shall be or become applicable to, and control or limit in any way the actions of, those engaged in any way as principal or agent, must be respected and strictly complied with. “The contractor shall keep himself fully informed of existing and future State and national laws and city ordinances and regulations in any manner affecting those engaged and employed in or on the work, or in any way affecting the conduct of the work; and of all orders or decrees of bodies or officials having any jurisdiction or authority over the same. He shall himself at all times observe and comply with, and cause any and all persons, firms and corporations employed by him or under him, to observe and comply with, all such laws, ordiúances and regulations, orders and decrees.” * * # “Ordinance Ho. 229, approved March 21st, 1905, which was in full force and effect prior to the award of the same contract, provides: “ ‘76 A. Ho person shall blast rock or stone or other material or thing with gunpower, giant powder, dynamite, gun cotton, nitro-glyeerine, or any other explosive compound within the limits of the City of Baltimore, without the written consent of the Board of Public Safety, for the time being.’ “The rules and regulations of the Board of Public Safety, regulating blasting to be done within the city limits, provide that all blasting must be done under the supervision of inspectors of the Board of Public Safety, and that such inspectors shall regulate and control the amount of explosives to be used in said blasting, and that all persons, firms and corporations engaged in such blasting work must comply with the orders of said inspectors. ²²⁹ “In view, therefore, of the said provisions of the contract, ordinance, rules and regulations of the City of Baltimore, the plaintiff agreed with the defendant that all Hasting operations of the plaintiff should be subject to the control and authority of the Board of Public Safety and its inspectors. “And the defendant further says that the said Board of Public Safety and its inspectors duly and properly exercised the authority committed to them under the law, for the safety and protection of the public.” A demurrer filed to the third plea was sustained, and the case went to trial upon the first and second pleas.

The trial resulted in a judgment for the plaintiff for the sum of twenty-six thousand dollars ($26,000.00). From that judgment this appeal was taken. The specifications, provide that “the work to be done shall be undea" the general supervision of the engineer”; and the use of the term engineer, “whenever not qualified, shall mean the Engineer of the Commission.” He “may exercise such general control over the conduct of the work, at any time or place., as shall be required, in bis. opinion, to safeguard the interests of the city”; and “all methods of tunnelling shall be satisfactory to the engineer and subject to Ms approval, and shall be changed from time to time, at the cost of the contractor, if in the judgment of the engineer, the conditions so require.” “Drilling and blasting shall be conducted with all possible care,” and “explosives shall be used of such character and strength as. may be permitted by the engineer,” and “all necessary precautions must be taken to prevent accident and injury or damage to adjacent buildings; * * * and blasts shall be made only during such hours as shall be designated by the engineer.” Under these provisions, the engineer of the Commission assumed supervision of the work, and on October 22nd, 1909, O. W. Comnet, the division engineer, acting under his chief, Calvin W. Hendrick, wrote to the plaintiff calling its attention to the specifications which requires the method of tun ²³⁰ nelling to be satisfactory to the engineer and subject to his approval, and asked that it submit to the chief engineer “a drawing showing the methods you propose to- use, for his approval, so that there will be no delay when you reach the tunnel.” On October 29th, Connet again wrote the plaintiff and called its attention to the specifications for rock excavation, especially “with reference to blasting and the precautions to be taken to- prevent accident and damages.” So far as the record discloses, these letters were never answered, but Wm. B. Thomas, assistant engineer,, in charge of the work of The M. A. Talbott Ob., testified that he, about the time these letters were written, discussed with E. H. Bur-well, an assistant engineer of the Stewe-rage Commission, upon the work, the subject of the manner of'blasting the rock and was told by him that he was getting up> a “sketch,” by which he should drill the holes and blast the rock, and that he would give him a copy of it, which he did; that he did not know what had become of the “sketch,” although he believed a search had been made for it.

Upon being asked, he went to the board and “approximately reproduced” that “sketch.” He wlas then asked: “Q. How long were those holes to be ? A. About eight feet at such an angle as would bring them together if extended to a length of twelve feet. Q, Did the papers show anything else with reference to- the holes? If so, draw it.” The witness did as he was requested and was then asked: “Q. Of course, in the plan you have drawn, you, see three of the holes; you do not see the underneath three ?

A. Ho, sir.” This was all that was said by Thomas of the “sketch” in his examination in chief. He was then asked: “Q. Did you carry out those instructions, and if you did not, explain why ? A. We tried to carry out the instructions b-ut we were stopped by Mr. McGovern. He said that if you drill those holes so deep, you can not load them up- sufficiently.

He said you can drill theanj, but, you can not load them up with enough dynamite to pull it.” ²³¹ The witness then stated that McGovern was of the “City’s Engineering Department,” a representative of the city. The presence of McGovern upon the Work, supervising and controlling the blasting operation as above mentioned, is accounted for by the fact that the plaintiff company, before undertaking to blast the rode in the tunnel, had applied to and had obtained from the Board of Public Safety, its written consent to do such blasting. This application made by the written consent given to the plaintiff was pursuant, it seems, to the Ordinance of the Mayor and City Council, known as Ordinance Ho. 229, set out in defendant’s third plea. At the time said written consent was given, McGovern, pursuant to the regulations of said Board, was placed upon the work as an inspector to regulate and control the amount of explosives to be used in the blasting.

The witness, Thomas, further testified that McGovern made him “cut the holes down to four feet instead of eight feet.” “Q:. "What did McGovern do in reference to the size of the charges ? A. He out them, down considerably from what we wanted to do it. Q. What would have been the proper charge to have placed in holes eight feet deep?

A. A stick to the foot. Q. That is, eight sticks to each hole? A. Yes, sir. Q. You mean to shoot them all off at once?

A. Yes. Q. Six holes at once? A. Yes, sir.” He said McGovern, permitted them to use at the most only a stick and a, half of dynamite to a, hole, and to shoot one hole only at a time, each stick weighing little over a half pound. He^ however, was contradicted by McGovern, who said he allowed them to blow four core holes at one time and gave them about two sticks and half to a hole.

These alleged restrictions, as* Thomas testified, were followed until about the last of January, when, as he stated, Mr. Talbott told him “to* shoot the holes* as they ought to be shot, as he was losing thousands of dollars* the way we were going now; he (McGovern) said, there is no use* of drilling them, because you can not load them, and I said, we will see about ²³² that. We had the holes drilled and I and my head foreman, each took a bucket of dynamite, full of dynamite, a tin pail and we had possibly in each pail 20- sticks of dynamite; and in going down, the foreman he Went down the shaft ahead of me; and when I came up McGovern said, you are not going to take that down, and I said, yes, I am, and he said, you are not, you are not going to shoot them off, and he tried to grab the bucket out of my hand; I said, don’t do that, what are you going to do, blow us all up< ? He said, never mind what I am going to do, you are not going to shoot the dynamite off and I said, positively I am going to shoot it off, and I took down the dynamite and loaded the holes, we had 6 holes, and we loaded the holes, at that time they were about six feet deep, we loaded the holes one stick to the foot. * * * And then I said, all right, let her go, and it was exploded and the noise was not near as great as some of the single shots' McGovern forced me to make and the vibration was very little; McGovern came up and said I am going to get you arrested; I said, that’s your privilege; he said, if you do it again—no I am going to get you arrested now; I said, all right, and he went around somewhere and finally he came back but I was never arrested.” Upon cross-examination, Thomas was asked: “Q. Did you get it (the ‘sketch’) from him (Burwell), or did you make it up together ? A. If I remember correctly, Mr. Burwell made it.

Mr. Burwell and I talked it over, Whether before or after he had the drawing made, I do not know. Q. Did it call for the depth of the hole, and if so what was the depth ? A. I could not say; I do not remember the depth being given. Q. Do you say it was given or not ?

A. I am not positive whether the depth was given or not. A. Why did you undertake to tell the Court and jury the other day about the depth, in describing this plan ? A. It was put oh there for the simple reason to give it a practical way, the way I wanted to do it, the eight feet.. Q. What'else did the paper have on it ?

A. The lower ‘sketch’ had another ring, if I remember correctly, it had a line showing the breakage:” He further testified ²³³ that “Burwell being a theoretical man, be had a theory that he was working on and he wanted to see whether, practically, if it would do,” but “he did not have a chance to experiment with his theory”; and when asked where Burwell got it from he replied: “I suppose he read it in the books; I told him, 1 said, that is the practice I have always used in getting the core out.” He also testified that he never brought the matter of the “sketch” or plan to the attention of either Mr. Connet or Mr. Hendrick, nor does it appear that he ever complained to Hendrick, Connet or Burwell of any interference on the part of the inspectors of the city in blasting the rock in accordance with t-he alleged plan or “sketch” given to him by Bur-well. It will be observed that Thomas, in his examination-in-chief, testified that the boles by the alleged “sketch” given to him by Burwell were to be eight feet long; but upon cross-examination be testified that he was not positive that any depth of the holes were given, and in describing the plan or “sketch,” said: “It was put on there for the simple reason to give it a practical way, the way I wanted to do it.” It may also be said there is nothing found in his testimony, or elsewhere in the record showing that the alleged “sketch” made any reference whatever to the size of the charges of dynamite to be used in the blasting. As to the amount or size of such charges, the alleged “sketch” or plan was absolutely silent. When Thomas was asked as to McGovern’s action in reference to the size of the charges, he asnwered: “He cut them down considerably from what we wanted* to do it”; then goes on to say what would have been a proper charge in a bole 8 feet deep.

It will thus be seen that neither the depth of the hole nor the size of the charges were given in the “sketch” alleged to have been furnished by Burwell to Thomas to be used, as the plaintiff claimed, in blasting the rock. Burwell, when placed upon the stand by the defendant, testified that the “sketch” referred to “was simply a sugges ²³⁴ tion that the engineer in charge of the work made to the superintendent or contractor, showing in a friendly way an interest in the progress of the work”; that he conferred with neither Mr. Connet nor Mr. Hendrick in relation -to the “sketch” before making it, nor was it thereafter passed upon by either of them; that neither it nor a copy of it was ever given to Mr. Thomas, but that it was kept in a loose-leaf book in his possession. It Was simply a “suggestion made upon his own initiative,” and, as he said, “I could not possibly have insisted that that method be carried out, because I had nothing in the world to do with the amount of dynamite,” indicating that he thought the amount of dynamite to he used was under the control and supervision of the inspectors. The alleged “sketch” which was described by Thomas was put in evidence, but it does not appear in the record, nor is it before us for our inspection.

It was never mentioned nor referred to in any of the communications between the plaintiff and Hendrick, in which the plaintiff complained of the requirements made by the City Engineer, nor in its letters asking for extension of time. The evidence not only shows that such “sketch” or plan was not sufficiently comprehensive in directing the manner or method by which the blasting was to be done, but it fails to disclose that it was ever brought to the attention of the Engineer of the Sewerage Commission and approved by him. The fact remained, although the plaintiff was twice asked to do so, that no plan or method by which the blasting was to be done was ever submitted by it for the approval of the Engineer of the Sewerage Commission, and that no plan or methed, other than the one used in the blasting of the rock within the tunnel, was ever approved by the Engineer. On January 31st, 1910, about the time of the trouble between Thomas and McGovern, in which the former disregarded the wishes of the latter in blasting the rock, B. T. Fendall, City Engineer, wrote to The M. A. Talbott Co.,, saying: ²³⁵ “I understand you are not satisfied with the rulings of nay inspector on the work you are doing on Clifton Place (Jones’ Falls Interceptor), but that you propose to load and fire your holes as you think best, regardless of instructions of inspector.

This is to notify you if you do anything of the sort, I shall ask the Board of Public Safety to cancel your permit, and will absolutely stop the work until the Mayor shall relieve me of the responsibility and iet you proceed under the direction of the Sewerage Commission, or some other agency other than under the supervision of this department. “I do not wish to be arbitrary in the matter, but your attitude forces me to be arbitrary. If any further trouble is reported to me, I shall certainly act along the lines herein indicated.” On February 7th, 1910, The M. A. Talbott Co. wrote to Mr. Hendrick, enclosing to him Mr. F'endall’s letter of January 31st, calling Mr. Hendrick’s attention to the provisions of Ordinance Ho. 229, and to certain provisions of the contract, in relation to the supervision of the work and the blasting of the rock in the tunnel, saying: “It will be seen at once that the provisions of Section 72 of the City Code (Ordinance 229) and those of Section 103 of said specifications are at variance. This apparent conflict at once raises the question as to which enactment of the Mayor and City Council of Baltimore: its ordinance adopted in 1906, or its contract made in 1909, had precedence. It seems clear to us that the latest expression qualifies the former, to the extent that the supervision of the use of explosives in the construction of the work contemplated in building Jones’ Falls Interceptor, is placed in the charge of the Chief Engineer of the Sewerage Commission.

Section 44 of said specifications declares that 'all ordinances of the City of Baltimore * * * which shall be * * * applicable * * * must be respected and strictly complied with.’ ²³⁶ “This can only mean such ordinances as are applicable and not at variance with the clearly defined requirements of the specifications. Any other construction would completely nullify the provisions of Section 103, which certainly was not intended. “Now, while we have always protested the presence and authority of an inspector from the Department of Public Improvements on the line of our work in any capacity except as an onlooker, we have been respectful to him when he has asserted an authority to regulate the manner of drilling, loading and shooting of our powder holes, realizing that he was acting under orders. And we have permitted our employees to be influenced and directed by him even when it was clearly apparent that he was inexperienced and incompetent. “We permitted this deplorable condition of affairs to exist for over three months in the hope that matters would right themselves before our losses incident thereto became intolerable. “Finally, after a loss of nearly $10,000.00 incident to permitting him, over our protests, to regulate the use of explosives, we declined to permit our employees to be influenced or directed by him any longer.” In the letter it was also said: “We feel satisfied that the City Solicitor will agree with this proposition, but whether he does or not, we are advised that it is the law.” In reply to' the plaintiff’s letter of February 7th, Mr.. Hendrick on the following day wrote, saying: “I beg to acknowledge receipt of your letter of the 7th, regarding the matter of blasting on the Jones’ Falls Interceptor, which I will give careful consideration.” Between the date of this letter and the 1st of March, the City Solicitor gave an opinion as to the application of said ordinance to the work under the contract, holding that the-city ordinance and the regulations of the Board of Public Safety passed thereunder did not apply, and that the inspector- ²³⁷ was