Dalles City v. Aetna Accident Co.

182 P. 385, 93 Or. 148, 1919 Ore. LEXIS 153

• Court: Oregon Supreme Court
• Decided: July 15, 1919
• Status: Published

Opinion

BENSON, J.

1. At the conclusion of the trial, when both parties had rested, the defendant moved the court for a directed verdict upon the ground that there was an entire absence of any evidence tending to prove that the faulty condition of the pavement was the result of either defective materials or workmanship. The denial of this motion constitutes the only assignment of error. We have read the transcript of the testimony with care, and have not been able to discover a syllable of evidence as to the character of the materials used, or the quality of the workmanship. Indeed, the plaintiff concedes that there is no direct testimony upon the subject, but contends that the fact that the top or wearing’ surface wore out, leaving the concrete base to disintegrate, as it did, is ample evidence to go to the jury upon the question of defective materials and workmanship. Upon this question we are compelled to agree with the opinion of the United States Supreme Court, as expressed in the case of District of Columbia v. Clephane, 110 U. S. 212 (28 L. Ed. 122, 3 Sup. Ct. Rep. 568). This was an action under substantially the same sort of contract. No evidence was given that the material furnished by defendants was unsound, or that the work was not well done in putting it down. There was evidence that within three years after the completion of the work the pavement became so badly broken up and so imperfect as to require extensive repairs. In the opinion, Mr. Justice Mtut/fir. says:

“His contract was to lay the Miller Wood Pavement, a patented invention. Of the capacity of this invention for resisting weather and use, the Board of Public Works, and not he, took the responsibility. * * The language of this agreement is, that if any parts thereof, that is, the pavement, ‘shall become defective from imperfect or improper materials or construction, he will repair.’ No evidence was offered that any of the material was imperfect or improper when placed there, or that any of this construction was improperly or defectively done. We think this was necessary to enable plaintiff to recover. It will not be presumed, because the work needed repair within three years, that the material furnished by plaintiff was originally imperfect, or that the construction was not well done. ’ ’

In the case at bar, the city authorities selected a patented article, “The Dolorway Pavement,” and the contract was based upon the specifications therefor. The facts bring the case clearly within the doctrine announced in the quotation above made. '

It is possible that upon a retrial the plaintiff may present the necessary evidence to establish its claim. The judgment is reversed and the cause will be remanded for a new trial. Reversed and Remanded.

McBride, C. J., and Burnett and Harris, JJ., concur.