Construction Specialties Co. v. School Dist. 2 in El Paso County

         Edward B. Almon, Denver, for plaintiff in error.

         Horn, Anderson & Johnson, R. E. Anderson, Colorado Springs, for defendant in error School Dist. No. 2 in County of El Paso and State of Colorado.

         Gibson, Gibson, Cole & Gerdes, Colorado Springs, for defendants in error F. L. Davis, Inc., and National Union Fire Ins. Co.

         Moyers & Dunlap, Colorado Springs, for defendants in error Benbow-Cobb Plumbing & Heating Co., and St. Paul Fire & Marine Ins. Co., and Benbow Plumbing & Hearing Co.

         DWYER, Judge.

         This case was originally filed in the Supreme Court of the State of Colorado and subsequently transferred to the Court of Appeals under authority vested in the Supreme Court.

         This litigation arose after the construction of a school building was completed and it was discovered that the water in certain drinking fountains was too hot to drink.

         The School District brought this action against F. L. Davis, Inc., the general contractor, and recovered a judgment for $2,000, which was the estimated cost of correcting the defect in the construction. The general contractor, on its third-party claim, recovered a judgment over in the same amount against its plumbing subcontractor, Benbow-Cobb Plumbing & Heating Co., which, in turn, recovered a judgment over in the same amount against its insulating subcontractor, Construction Specialties Co. of the several judgments entered by the trial court, the only one here on writ of error is the judgment against Construction Specialties Co. hereinafter referred to as the defendant.

         The drinking fountain water was supplied by a cold water line installed in a trench under the floor. Two hot water lines running parallel to the cold water line were installed in the same trench. The actual work of installing the water lines was performed by the plumbing subcontractor and after it had placed the pipes in the trench, the defendant, pursuant to a subcontract, insulated the lines.

         At the trial it was undisputed that the heat gain in the cold water line was coming from the hot water line. The responsibility for this condition was the central issue. The architect said the plumbing subcontractor was responsible because the pipes had not been installed in accordance with the plans and specifications. He further stated that the plans required a minimum space of six inches between the pipes, center to center. He testified that the plumbing subcontractor had not followed these plans, but, instead, installed the pipes too close together. T. L. Cobb, an officer of the plumbing subcontractor, claimed that the faulty installation was the responsibility of the architect. He contended that the plans and specifications were deficient because they did not require the six-inch separation between the pipes which the architect said was necessary.

         The plans also specified that the two hot water lines were to be insulated with fiberglas and wrapped together in felt. Defendant, however, insulated all three lines and wrapped them all together in felt. Defendant's explanation for this deviation was that the pipes had been laid so close together that it was not feasible to follow the plans and that the deviation was immaterial.

         Neither the architect, nor the plumbing subcontractor, nor any other witness testified that the manner in which the insulation was installed caused the heat gain in the cold water line.

         At the conclusion of all the evidence, the trial court found that the general contractor had breached its contract with the School District 'by failing to have properly installed under-floor hot water, hot water circulating and cold water lines as called for by the plans and specifications.' Since the judgment entered against the general contractor and the judgment over against the plumbing subcontractor are not challenged on appeal, the question of whether the heat gain in the cold water line was caused by improper design or by improper installation of the pipes is not before us.

         The trial court further found 'that the insulation of said lines was not performed according to the aforesaid plans and specifications and as a result thereof the plaintiff was damaged in the amount of $2,000.00.'

          The judgment of the trial court against defendant must be affirmed if there is any evidence in the record to support it. Ridgeway v. Pope, 163 Colo. 160, 420 P.2d 77. Defendant concedes that the manner in which it wrapped the pipes was a deviation from the plans and specifications, but contends that its breach was not material, and that there is no evidence in the record to establish that the manner in which it insulated the pipes caused the heat gain in the cold water line. In an action for damages arising out of a breach of contract, the evidence must establish that the damages sustained were the direct result of the breach. See Colorado Nat'l Bank v. Ashcraft, 83 Colo. 136, 263 P. 23; 25 A C.J.S. Damages s 162(11). Our examination of the record fails to disclose any evidence which establishes that the heat gain in the cold water line was the result of the manner in which defendant insulated the pipes.

          The defendants in error in their brief have not referred to any testimony in the record which would support the judgment against the defendant. However, they refer us to a letter which they contend establishes defendant's responsibility for the heat gain in the cold water line. The letter is from T. L. Cobb to A. F. Hubchik, president of the general contractor. An examination of the record discloses the following. T. L. Cobb was called for cross- examination by counsel for the School District. He testified that after the work was completed there were complaints about the temperature in the cold water lines. He stated that his company made tests and investigations to determine the cause of this condition. These tests showed that there was a higher temperature in the cold water lines when the hot water lines were circulating. He was then asked the following question:

'Q And as a result of your tests was it your opinion that this was due to the three lines being wrapped with forty-five pound felt?

'A No, it was not.'

         At this point the letter in question was identified by the witness and admitted in evidence. The letter contains the following statement:

'With the hot water circulating line on we are getting a heat gain on the cold water line, due to the three lines being wrapped with 45 pound felt.'

         On redirect examination, T. L. Cobb explained that the letter was written before he had had an opportunity to examine the pipes in place, and that the statement set forth in the letter was strictly conjectural. The letter, a hearsay document, was admissible only for the purpose of impeachment. In Pomeroy v. People, 116 Colo. 518, 182 P.2d 139, the applicable rules are stated as follows:

'* * *, 'In no event may a purely hearsay statement be admitted as substantive proof of a fact under the guise of impeaching a witness.' 20 Am.Jur. 405, s 458.

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'* * * 'An extrajudicial statement of a witness, when offered in evidence for the purpose of impeaching his testimony, does not serve any other purpose than to destroy the effect of the testimony given by the witness. The so-called impeaching statement is not evidence of any other fact than that the testimony given by the witness is not worthy, of belief.''

         The letter does not constitute substantive evidence and, as stated above, there is no other evidence in the record to support the judgment against defendant.

         Judgment reversed.

         DUFFORD and PIERCE, JJ., concur.