Berry v. City of Santa Barbara

• Decision Date: 08 February 1967
• Citation: 248 Cal.App.2d 438,56 Cal.Rptr. 553
• Court: California Court of Appeals Court of Appeals
• Parties: C. W. BERRY, Plaintiff and Respondent, v. CITY OF SANTA BARBARA, a Municipal Corporation, Defendant and Appellant. Civ. 29235.

Page 553

56 Cal.Rptr. 553

248 Cal.App.2d 438

C. W. BERRY, Plaintiff and Respondent, v. CITY OF SANTA BARBARA, a Municipal Corporation, Defendant and Appellant.

Civ. 29235.

Court of Appeal, Second District, Division 3, California.

Feb. 8, 1967.

Stanley T. Tomlinson, City Atty., for appellant.

Gerald B. Parent and W. Edmund Parent, II, Santa Barbara, for respondent.

COBEY, Associate Justice.

This is an appeal from a judgment for plaintiff-respondent, C. W. Berry, hereinafter called 'Contractor' in the amount of $5,323.81 as the amount owing to him under a contract with defendant-appellant, the City of Santa Barbara, hereinafter called 'City' to resurface and subseal certain of its streets.

The basis of this appeal is that the trial court prejudicially erred against the City in making the following finding: '4. That the issues of plaintiff's performance of the terms of the contract and the liability for the asphalt entering the city sewers were heretofore decided in the case of Hooker v. City of Santa Barbara, et al, Santa Barbara Municipal Court, No. 14150, and that the doctrine of collateral estoppel is applicable.'

The pertinent facts are as follows. On October 6, 1959, the Contractor's subcontractor, I. J. Ely Company pumped approximately 2 1/2 tons of hot asphalt compound under pressure into a number of holes in Mission Street in Santa Barbara. These holes were in the immediate vicinity of a pipe, known both as a 'lamphole' and a 'cleanout' and used for inspection and maintenance of city sewers. This pipe led from a manhole in the surface of the street to an underground city sewer main. The compound, without anyone knowing about it, entered this pipe and descended into this sewer main. From the main it went into one or more lateral houshold service sewers. The compound then cooled and hardened and blocked these sewers.

The next day the City discovered this blockage and demanded that the Contractor unblock these sewers and repair this damage. The Contractor refused to do this and the City thereupon employed sewer contractors and its own personnel to un block these sewers and repair the damage to them ¹ at a cost to it of $5,323.81 aside from the hereafter mentioned sewer belonging to one Marion O. Hooker.

It then withheld this sum from the payments due the Contractor under its aforementioned contract with the City. This withholding gave rise to the lawsuit which ended in the judgment which is the subject matter of this appeal.

Thereafter, one of the residential property owners, the just mentioned Marion O Hooker, whose lateral household service sewer had been so blocked, brought suit for damages, by action No. 14150 in the Santa Barbara Municipal Court, against the City, the Contractor and his aforementioned subcontractor. In that action the City cross-complained against the Contractor and his subcontractor for indemnification of such damages pursuant to the provision therefor in the aforementioned contract between the parties.

This provision is as follows: 'The contractor shall indemnify and save harmless the City of Santa Barbara, the City Council and the City Engineer from any suits, claims or actions brought by any person or persons for or on account of any injuries or damages sustained or arising in the construction of the work or in consequence thereof.'

After a nonjury trial on August 1, 1961, the municipal court on January 22, 1962, gave judgment on the complaint against the City in the amount of $404.42 and further adjudged that the City recover nothing on its cross-complaint. The basis of this adverse judgment on the cross-complaint were express findings by the municipal court, that although the contract between the parties was a valid one, its just-quoted 'hold harmless' provision was unenforceable by the City against the Contractor and his subcontractor because neither of them was guilty of any act that was the proximate cause of Hooker's damages and that the sole proximate cause of such damages was the act of the City's employee in giving the subcontractor wrong information regarding the flow of sewage in the construction area. The municipal court further expressly found that both the Contractor and his subcontractor 'performed their contract in accordance with the plans and specifications and under the terms in their respective contracts and are not guilty of any negligence contributing to the plaintiffs (sic) loss.'

In the counterclaim portion of its answer filed in the superior court action, now before us, on September 26, 1960, many months before both the trial and the judgment in the aforementioned municipal court action, the City did not confine its affirmative defenses to the above-quoted 'hold harmless' provision of the contract between the parties. It expanded the basis for such defenses to the following provisions of the specifications, which are a part of the contract. ²

Section 3. 'I. REMOVAL OF DEFECTIVE AND UNAUTHORIZED WORK. All work which is defective in its construction or deficient in any of the requirements of these specifications shall be remedied, or removed and replaced by the contractor in an acceptable manner, and no compensation will be allowed for such correction.

'Any work done beyond the lines and grades shown on the plans or established by the City Engineer, or any extra work done without written authority will be considered as unauthorized and will not be paid for.

'Upon failure on the part of the contractor to comply forthwith with any order of the City Engineer made under the provisions of this article, the City Engineer shall have authority to cause defective work to be remedied, or removed and replaced, and unauthorized work to be moved, and to deduct the costs thereof from any moneys due or to become due the contractor.'

Section 5. 'I. RESPONSIBILITY FOR DAMAGE. The City of Santa Barbara, or the City Engineer, shall not be answerable or accountable in any manner for any loss or damage that may happen to the work or any part thereof; or for any material or equipment used in performing the work; or for injury or damage to any person or persons, either workmen or the public; for damage to adjoining property from any cause whatsoever during the progress of the work or at any time before final acceptance.

'The contractor shall indemnify and save harmless the City of Santa Barbara, the City Council, and the City Engineer from any suits, claims or actions brought by any person or persons for or on account of any injuries or damages sustained or arising in the construction of the work or in consequence thereof. The City Council may retain so much of the money due the contractor as shall be considered necessary, until disposition has been made of such suits or claims for damages as aforesaid.'

Section 5. 'J. CONTRACTOR'S RESPONSIBILITY FOR WORK. Except as provided above, until the formal acceptance of the work by the City Council, the contractor shall have the charge and care thereof and shall bear the risk of injury or damage to any part thereof by the action of the elements or from any other cause, whether arising from the execution or from the non-execution of the work. The contractor shall rebuild, repair, restore, and make good all injuries or damages to any portion of the work occasioned by any of the above causes before final acceptance and shall bear the expense thereof, except such injuries or damages occasioned by acts of the Federal Government or the public enemy.'

We do not understand the City's reliance on the just-quoted subsection 31 and subsection 5J of the contract. The first subsection establishes the noncompensability of the work done under the contract which is either defective in construction or deficient in meeting the requirements of the specifications, or unauthorized. The second subsection places upon the Contractor, until the City's final acceptance of the work done under the contract, all risk of injury or damage to any part of such work from any cause. Both subsections relate solely to the Contractor's liability with respect to work done under the contract. Neither has anything to do with damage to property, other than the work done under the contract, such as is involved here. Consequently, in our opinion, neither of these subsections affords any support whatsoever for the City's affirmative defenses set forth in its counterclaim.

This leaves as the only basis for such defenses of the City, the above-quoted subsection 5I. The first paragraph of this subsection, insofar as it is here relevant, states that the City shall not be liable for any damage to adjoining property from any cause whatsoever at any time before final acceptance of the work done under the contract. If this paragraph be construed as covering the sewers involved here as 'adjoining property,' it is applicable. Furthermore it does not appear to have been expressly in issue in the municipal court action. ³ However, the judgment for damages in that case in favor of Hooker, the adjoining property owner, and against the City, runs directly contrary to the flat prohibition against such liability contained in this paragraph.

This brings us to the second paragraph of the section--the 'hold harmless' provision--which was expressly in issue in the Hooker case. This paragraph, insofar as it is here involved, requires the Contractor to 'indemnify and save harmless' the City from any suit brought by any person for or on account of damages sustained or arising in the construction of the work or...