Sanborn & O'Neil Towing, Inc. v. George Engine Co.

226 So. 2d 560, 1969 La. App. LEXIS 5576
CourtLouisiana Court of Appeal
DecidedJuly 31, 1969
DocketNo. 3594
StatusPublished
Cited by1 cases

This text of 226 So. 2d 560 (Sanborn & O'Neil Towing, Inc. v. George Engine Co.) is published on Counsel Stack Legal Research, covering Louisiana Court of Appeal primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Sanborn & O'Neil Towing, Inc. v. George Engine Co., 226 So. 2d 560, 1969 La. App. LEXIS 5576 (La. Ct. App. 1969).

Opinion

SAMUEL, Judge.

Plaintiff’s predecessor corporation entered into a contract with George Engine Company, Inc., one of the two defendants herein, whereby that defendant was to construct a twin-screw pusher-type tow boat according to certain specifications and, upon completion, sell the same to plaintiff. George Engine subsequently contracted with Philip Ditta, the other defendant, to build the hull. In due course the vessel was completed, sold and delivered.

Alleging that a short time after delivery the vessel began vibrating to an extreme extent due to defects in construction, plaintiff filed this suit seeking a purchase price reduction of $1,855.03, the alleged cost of repairing the defects, plus damages in the amount of $l,320.80i for alleged loss of profits during the time the vessel was in dry dock being repaired. Both defendants answered denying liability. In addition, George Engine filed a third-party demand against Ditta alternatively seeking judgment over against the latter in the event of a judgment in favor of the original plaintiff and against George Engine; and Ditta reconvened seeking judgment against the original plaintiff in the amount of $3,108.00 for extras placed on the vessel at the latter’s request.

After trial judgment was rendered: (1) on the main demand, in favor of the two original defendants and against the original plaintiff, rejecting the latter’s demands; [561]*561(2) on the reconventional demand, in favor of the plaintiff in reconvention, Ditta, and against the original plaintiff in the amount of $2,814.40; and (3) on the third-party demand, in favor of the third-party defendant, Ditta, and against the third-party plaintiff, George Engine, rejecting the latter’s demand.

The original plaintiff has appealed, contending the trial court erred: (1) in failing to find the vibrations were caused and the repairs were necessitated by a defect in the construction of the vessel; and (2) in awarding $2,814.40 to Ditta, the plaintiff in reconvention. The original defendants have neither appealed nor have they answered the appeal taken by the original plaintiff.

We do not agree with appellant’s first contention. The original defendants offered testimony to the effect that the vibrations could have been caused as a result of fault on the part of appellant, such as a damaged propeller, etc. Only questions of fact are involved and we agree with the trial court’s findings as expressed in his written reasons for judgment. In substance and in pertinent part, those reasons are as follows:

The plaintiff has sued the defendants in this case for damages arising from alleged defects in the construction of a twin-screw pusher type tow boat, which the defendants built for the plaintiff. The plaintiff alleges that some three (3) weeks after the boat began operations, and after operating for only 312 operating hours, it developed terrific vibrations which prevented its further use. Plaintiff contends that these vibrations were caused by misalignment of both struts of the boat during construction and that this misalignment quickly caused the shafts and cutlass bearings to wear rapidly, which, in turn, caused the vibration.

When the vibrations became so bad the boat could no longer be used, it was taken to Tibo Shipyards, Inc., in Harvey, Louisiana, where it was hauled upon ways. Shortly thereafter, a conference was held at this site between Mr. Wayne Sanborn, Vice President of the plaintiff company, Philip Ditta, the actual builder of the boat, and a representative of George Engine Company, Inc., which furnished the specifications and the engines. At this time Mr. Ditta and the George Engine Company representative suggested that piano wire tests be conducted to determine if any misalignment was present. They further stated that, if any misalignment was present, they would pay for the tests and requested that, if no misalignment was present, the plaintiff pay for the tests. This offer was declined by Mr. Sanborn and there is considerable evidence to the effect that Mr. Sanborn at this time agreed to accept the boat in the condition that it was. In fact, Mr. Sanborn admits he agreed to accept the boat provided that Mr. Ditta would forget about $2,500.00 worth of extras that Mr. Ditta is claiming. After this offer was declined, Mr. Ditta and the representative of George Engine Company left the scene.

Later, without the presence of either Ditta or a representative of George Engine Company, the plaintiff, through Tibo Shipyards, did conduct certain piano wire tests, which it claims showed that the struts were out of alignment, that this was a defect in construction and that this caused the vibration. The Court certainly feels that the defendants should have had an opportunity to be present during the conducting of any tests so that they could see for themselves whether or not the tests were properly conducted and the fact that they were not present must weigh against the plaintiff. However, if the Court were convinced that the tests conducted by the plaintiff, even outside of the presence of the defendants, were accurate and showed the construction defects as contended by plaintiff, this Court would have no hesitation in giving judgment for the plaintiff on this score; but the Court does not believe this to be the case.

There was a great deal of technical testimony given during the trial and the Court listened intently and made copious notes [562]*562regarding the same. At the conclusion of the trial, the Court was of the distinct opinion, at that time, that the plaintiff’s tests had failed to prove its point. The Court has now reviewed all of its notes and the record in this case very thoroughly and is still of that opinion.

Mr. Edmond Chaisson, who actually conducted the piano wire tests for plaintiff, did not actually install the piano wire himself. He had other workers do it and he admitted that the manner in which he conducted the test was a very rough check; but he insisted that from this test he could tell that the struts were out of alignment. Plaintiff’s expert, Mr. Frank Basile, who concluded from his observation of these tests that the struts were out of alignment, testified that new shafts and new cutlass bearings had already been installed and the piano wire was already in place when he was called in. He concluded from his observation that the tests showed the starboard strut was out of alignment horizontally by .093 inches. He also “assumed” that the port strut was out of alignment by approximately the same amount. He admitted he made no scientific measurements or tests whatsoever on the port side but concluded that it was also out of alignment because there existed the same type of pressure or binding on the port side as on the starboard side.

It would be difficult to prove a case in any event with this sort of test being used and with the defendants absent after they had offered to have the same type of tests made (though perhaps in a different manner) in their presence. But the thing that really convinced the Court that these tests under these circumstances failed to prove plaintiff’s case was the testimony of Mr. Frederick Blount, the expert marine surveyor offered by the defendants. Mr. Blount testified in great detail and with great clarity and gave many illustrations which convinced the Court that, because of the manner in which the tests were performed by the plaintiff, they could not be relied upon. For one thing, Mr. Blount testified and proved to the Court’s satisfaction, that the only accurate way to measure for misalignment in front of the cutlass bearing is to cut windows in the stern tube.

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Related

Sanborn & O'Neil Towing, Inc. v. George Engine Co.
229 So. 2d 114 (Supreme Court of Louisiana, 1969)

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Bluebook (online)
226 So. 2d 560, 1969 La. App. LEXIS 5576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sanborn-oneil-towing-inc-v-george-engine-co-lactapp-1969.