Bryne v. City of Gloucester

• Decision Date: 31 March 1937
• Citation: 297 Mass. 156,8 N.E.2d 170
• Parties: BRYNE v. CITY OF GLOUCESTER.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

297 Mass. 156

8 N.E.2d 170

BRYNE

v.CITY OF GLOUCESTER.

Supreme Judicial Court of Massachusetts, Essex.

March 31, 1937.

Report from Superior Court, Essex County; Williams, Judge.

Suit in equity in the superior court by George M. Bryne against the City of Gloucester. On report by Williams, J., who declined a ruling requested by defendant.

Final decree entered for plaintiff in accordance with opinion.F. H. Tarr, of Gloucester, for plaintiff.

C. W. Wonson, City Solicitor, of Gloucester, for defendant.

QUA, Justice.

On May 7, 1927, the plaintiff contracted with the defendant to construct a sewer in the defendant city. The city retained a portion of the contract price until the plaintiff should complete the contract and out of the sum so retained made certain payments to one Low and to one Stapleton for injury to their buildings as the result of blasting by the plaintiff in the course of the work. The issue at the trial of this suit was whether, under the contract between the plaintiff and the defendant, the ultimate loss due to these payments should fall upon the plaintiff or upon the defendant.

Pertinent facts are established by stipulation of the parties: Part of the work included in the contract was the construction of a tunnel, mostly through solid rock, under the premises of Low and of Stapleton. After the making of the original contract, the defendant, without the knowledge or consent of the plaintiff, made agreements with Low and with Stapleton by which the city acquired the necessary easements through their lands and also agreed in the event of inevitable or necessary damage to restore the buildings to their former condition. The plaintiff performed the work ‘with extreme care and with no negligence,’ and any damage to the buildings ‘was caused inevitably by necessary blasting operations and was not due in any way to his lack of due care.’ The contract between the plaintiff and the defendant contained this paragraph:

‘The Contractor shall indemnify and save harmless the City, * * * from and against all claims, demands, payments, suits, actions, recoveries and judgments of every nature and description * * * brought or recovered against it * * * by reason of any act, omission or neglect of the said Contractor, his agents or employees, in carrying on the work. * * *’

The defendant requested the trial judge to rule in substance that this provision required the plaintiff to indemnify the defendant with respect to any act of the plaintiff in carrying on the work, causing damage or loss to a third person, including not only loss due to negligence, but also loss which was inevitable by reason of the construction of the tunnel, and that accordingly the plaintiff could not recover. The judge declined so to rule and ruled instead that the word ‘act’ in the contract ‘means only an improper or negligent act or acts, and if the plaintiff Bryne was not guilty in carrying on this work of any improper or negligent acts, he is not bound to indemnify and save harmless the said City for the damages alleged in this case.’ It is stated in the report of the trial judge that the case is reported ‘as provided in said stipulation,’ and that ‘If my ruling is right, decree is to issue ordering the defendant City to pay to the plaintiff’ certain sums, and that ‘If my ruling is in error, decree is to issue dismissing the plaintiff's Bill of Complaint.’

It follows that the only question before us is as to the correctness of the judge's ruling in construing the contract. If this depended upon whether the words ‘any act, omission or neglect of said Contractor’ should in general be confined to improper or negligent acts, we should probably have little difficulty in saying that full effect must be given to the words ‘any act,’ and that the indemnity is not limited to the consequences of acts which are improper or negligent. Farrell v. Eastern Bridge & Structural Co. (Mass.) 197 N.E. 68. See New York Central Railroad Co. v. William Culkeen & Sons Co., 249 Mass. 71, 75, 144 N.E. 96;Clarke v. Ames, 267 Mass. 44, 46, 165 N.E. 696;Bray v. Hickman, 263 Mass. 409, 414, 161 N.E. 612. But neither the stipulation of the parties nor the ruling of the judge should be construed in vacuo or as mere abstractions. We must treat both as framed with reference to the live issues disclosed in this particular case, and we must construe the contract with reference to the situation of the parties when they made it and to the objects sought to be accomplished. Clark v. State Street Trust Co., 270 Mass. 140, 153, 169 N.E. 897;Kennedy Bros., Inc., v. Bird, 287 Mass. 477, 483, 192 N.E. 73; Union Market National Bank of Watertown v. Nonantum Investment Co. (Mass.) 197 N.E. 57.

It is not disputed that under the contract the plaintiff might be required to construct a tunnel on private land. The parties must...