Heman Construction Co. v. City of St. Louis, 256 Mo. 332

256 Mo. 332 | Mo. | 1914

BLAIE, C.

— Under a contract with defendant, plaintiff in constructing a sewer excavated along the lot line of property owned by a Mrs. Gerst, and, as a result, a building erected on the lot was damaged. Neither plaintiff nor defendant had notified Mrs. Gerst of the intent to excavate, and in these circumstances the latter recovered a joint judgment against the present plaintiff and defendant for the damage to her property, and the plaintiff here having been compelled to pay that judgment brought this action against the city to recover one-half the amount thereof. From a judgment for plaintiff the city has appealed.

One of the general stipulations in the contract under which plaintiff constructed the sewer in question was as follows:

“The first party” [the present plaintiff] “will be required to observe all city ordinances in relation to obstructing streets, maintaining signals, keeping open passageways and protecting the same where exposed, and generally to obey all laws and ordinances controlling or limiting those engaged on the works, and the said first party, contractor and securities, here expressly bind themselves to indemnify and save harmless the city of St. Louis from all suits or actions of every name and description brought against the said city for or on account of any injuries or damages received or sustained by any party or parties by or from the acts of said contractor, or by his servants or agents in doing the work herein contracted for, or by or in consequence of any negligence in guarding the same, or any improper materials used in its construction, or by or on account of any act or omission of the said contractor or his servants or agents.”

Defendant asked an instruction in the nature of a demurrer to the evidence and also requested the court to give an instruction to the effect, in substance, that the above quoted paragraph of the contract barred recovery. Both requests were refused, and these rulings, and others, are assigned for error.

The statute (Sec. 5431, R. S'. 1909) provides that “defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract. ’ * Considerable portions of the briefs are devoted to the question whether this case falls within the statute as heretofore interpreted by this court. In the view we take of the case that question, for reasons subsequently to be stated, need not be discussed.

Neither is the decision in Gerst v. The City of St. Louis and the Heman Construction Company, 185 Mo. 191, conclusive upon the question now presented. In that case, so far as the city was concerned, the inquiry was as to the liability of the city to Mrs. Gerst for damages resulting from the failure of the city to perform or have its contractor perform the duty to give notice of the intent to excavate along the line of the property on which the Gerst building stood. There is nothing in that case which militates in any way against the right of the city to enforce a bond given by a contractor to protect the city from loss resulting from injury to property damaged by such contractor in the course of the work he engaged to perform.

The real contentions to be considered are that (1) the quoted provision of the contract is contrary to public policy and void; and (2) even if valid, that provision is not applicable to the cause of action upon which Mrs. Gerst recovered judgment.

indemnifying City: Injuries to Third Persons, I. The quoted section of the contract is opposed to no principle of public policy. An agreement to indemnify a city against liability for injuries to third persons resulting from “ „ , , . the negligence of a contractor, m connection with the construction of a sewer falls well within the principle applied in Breeden v. Ins. Co., 220 Mo. l. c. 427, et seq., and cases cited. The fact that the contractor and indemnitor are the same person does not affect the question.

Excavating Noticetoo'wnlr: Negiigence. II. The remaining question is simply whether the contract of indemnity covers the liability for which the judgment respondent paid was recovered.

By its contract respondent agreed to observe designated ordinances ‘ ‘ and generally to obey all laws and ordinances controlling or limiting those engaged ■on the works” and to indemnify the city against all .suits or actions of every name and description brought ■on account of any injuries sustained by any person by reason of any act of respondent or its agents “in doing the work ... or by or on account of any ■act or omission of” respondent or its servants or ■agents.

The failure to notify Mrs. Grerst of the intent to excavate near and below the level of the foundation of her building followed by such excavation, was negligence (Gerst v. St. Louis, 185 Mo. l. c. 208), and this requirement of notice was one of the laws applicable to respondent in the work in which it was engaged under the contract. While both the respondent and city owed to Mrs. Grerst the duty of notifying her of the intended excavation, yet as between themselves the respondent contracted to indemnify the city ag-ainst liability to Mrs. Grerst and all others resulting from any omission on its, respondent’s, part to obey all laws applicable in the circumstances, one of which was that requiring notice of the intended excavation. The failure to notify Mrs. Grerst was not of itself negligence. It was absence of notice, plus the excavation near and below the level of the foundation, which constituted the negligence. Respondent was the active .agent in the actual work of excavating, and, as between it and the city, the city’s liability to Mrs. Grerst was founded upon respondent’s agency for the city. Plowever that may be, respondent’s contract bound it to indemnify the city against the very loss for which the judgment it paid was recovered, and it cannot recover in this case.

The case of Morton v. Traction Co., 20 Pa. Super. Ct. 325, is cited as supporting a contrary conclusion. ■Some general language is employed in the opinion which is not in harmony with what has been said but the facts in that case were very different from those ;in this. That case fell within the principle laid down by the Supreme Court of Pennsylvania in Perry v. Payne, 217 Pa. St. 252, i. e., that a contract of indemnity against personal injuries should not be held to indemnify against the negligence of the indemnitee unless it is so expressed in unequivocal terms. In that case and those cited in the opinion therein it is pointed out that the strict rule of construction employed arises out of the inherent improbability that an indemnitor or contractor would intend to agree to indemnify against injuries to third persons resulting from negligence of the indemnitee or his servants over whom the indemnitor has no control. The theory of such decisions is that to construe the bond or contract to make the indemnitor an insurer against the acts of the indemnitee or his servants resulting in personal injury to third persons is unreasonabale since such a contract would expose the indemnitor to liability “the extent of which would be uncertain, indefinite and entirely in the hands of” the indemnitee and against which the indemnitor would' have no means of protecting himself. Such a contract being unreasonable in its nature, courts decline to hold reasonable men have entered into it unless the language of the agreement leaves no reasonable way of escape from that conclusion.

The facts of this case do not bring it within that rule. There is nothing improbable, startling or unusual in an agreement whereby a contractor undertakes to protect a municipality from liability for damages to the property of third persons resulting from his own acts of omission, or those of his employees, in constructing a sewer.

The contract in this case ought to be construed according to the ordinary and usual import of the language in which it is expressed. So construed, that contract imposed upon the contractor the duty to notify Mrs., Grerst of the excavation intended to be made and indemnified the city against liability for loss by reason of a failure to perform that duty.

Whether the duty to give notice would, in the absence of the contract, have rested primarily upon the city, as between it and the contractor, need not be discussed since the contract is in the case. [City of Brooklyn v. Railroad, 47 N. Y. l. c. 486, 487.]

So far as concerns the suggestion that the duty to give notice rested upon both the city and the contractor and, therefore, both were concurrently negligent and equally liable, not only to Mrs. Gerst but also with relation to each other, the contract of indemnity, as stated, furnishes one answer. Another is found in the language of the court in Phoenix Bridge Co. v. Creem, 102 App. Div. l. c. 356, affirmed 185 N. Y. 580: “While there are some expressions in opinions which may seem to give color to the contention stated [i. e., that the absence of a contract for indemnity precluded recovery], I think the general trend of the decisions is adverse, and that the liability which results from the mere omission of a legal duty is to be distinguished for the purposes of this case from that which results from personal participation in an affirmative act of negligence or from a physical connection with an act of omission by knowledge of, or acquiescence in, it on the part of the original contractor, or by his failure to perform some duty in connection with it which he may have undertaken by virtue of his agreement. ’ * And it was held that while the plaintiff and defendant were equally liable to the traveling public “yet as between themselves” the contract imposed the duty upon defendant, and, though there was no express agreement to indemnify, plaintiff could be denied indemnity only “by proof that it did in fact participate in some manner in the omission beyond its mere failure to perform the duty imposed on both by law.”

var?ánce!'°nS' It is argued there was a discrepancy between the width of the alley and the width ascribed to it in the specifications and that this fact absolved the contractor from liability for not complying with its duty to give notice. If the contractor was not proceeding under the contract, the city could not be liable at all; and if it was proceeding under the contract, it was proceeding under all of it. The narrowness of the alley brought the excavation nearer the wall of the building injured and this the contractor saw before it began to excavate. A contract with a city to perform work of this kind must be in writing or is void from the beginning. [Sec. 2778, R. S. 1909.] Unless, therefore, the contract covered the excavation causing the injury to the building, respondent had no authority from the city to make it, and, for that reason also, could not recover in this case. The judgment is> reversed.

Brown, G., concurs. PER CURIAM.

— The foregoing opinion of Blair, C., is adopted as the opinion of the court.

All the judges concur.