City of Des Moines v. Barber Asphalt Co.

• Decision Date: 13 June 1913
• Docket Number: 97-M.
• Citation: 208 F. 828
• Parties: CITY OF DES MOINES v. BARBER ASPHALT CO. et al.
• Court: U.S. District Court — Southern District of Iowa

208 F. 828

CITY OF DES MOINES v. BARBER ASPHALT CO. et al.

No. 97-M.

United States District Court, S.D. Iowa, Central Division.

June 13, 1913

Robert O. Brennan, City Sol., of Des Moines, Iowa, for plaintiff.

John M Read, of Des Moines, Iowa, for defendants.

SMITH McPHERSON, District Judge.

In July, 1905, the city and defendant Asphalt Company entered into a written contract for the paving of a street; the Guaranty Company being a surety only for the Asphalt Company. At that time the city was a city of the first class under the statutes of Iowa. After the contract was made and the paving was completed, the city under a statute of the state was changed from a city of the first class to one under a commission form of government, commonly known as the 'Des Moines plan.' This fact is of importance, because of two other statutes to be noticed herein later. The paving was completed during the summer and fall of 1905. The contract provided that the material and workmanship should be such--

'that the pavement shall endure, without need of repairs, during a period of seven years from and after the completion thereof.'

Failing in which the contract provides:

'Then the contractor will, within ten days from the time of being notified of such defect, make the same good or will pay to the city of Des Moines the reasonable cost of remedying such defect.'

The contract also provides that:

'The above obligation to maintain said improvement in good condition and repair shall continue and remain in force.'

All the foregoing provisions are in writing. In print it was agreed that for any breach of the contract, followed by an action, a judgment against the city should be conclusive as to the liability of the Asphalt Company.

Within the limits of the paving, and within the seven years, by reason of disintegration of the paving near a street corner a hole two or more feet both in length and width, and two or more inches in depth, existed. The city served a written notice on the Asphalt Company to repair the defect, to which the Asphalt Company gave no attention. Later on a lady stepped into the hole, receiving a serious bodily injury. For such injury the lady brought an action, resulting in a judgment against the city for $4,000, which the city has paid, with interest and costs. To recover said amount this action is brought.

After the lady brought her action the city served a written notice on these defendants to appear and defend against said claim to which the defendants gave no attention. To the petition herein the defendants have demurred, which issue of law is now for decision.

Iowa has five kinds of municipal forms of government, each varying as to powers and liabilities from the other four: (1) Cities under special charters, created by special statutes. (2) Cities of the first class, created under general law, in excess of a designated population.

Des Moines was such when the contract was made and the paving done. (3) Cities of the second class, having a designated population less than the last preceding, existing under general laws. (4) Incorporated towns. (5) Cities having a commission form of government, such as Des Moines now is.

The notice to appear and defend the action brought by the lady, the petition herein states, was under section 1053 of the Iowa Code of 1897. But that statute is a section of chapter 14, title 5, of the Code, with reference only to cities under special charter. The first section (933) of that chapter is as follows:

'General Provisions not Applicable. The provisions of this chapter shall apply only to cities acting under special charter, and no provisions of this Code, nor laws hereafter enacted, relating to the powers, duties, liabilities or obligations of cities or towns, shall in any manner affect, or be construed to affect, cities while acting under special charter, unless the same have special reference or are made applicable to such cities.'

In 1907 (Acts 32d G.A.c. 48, Sec. 3) the Legislature amended the foregoing statute by providing that such statute should apply to a city such as Des Moines now is.

I conclude that neither of these statutes has any weight in the case at bar. Section 1053 of the Code applies only to cities under special charters. The statute of 1907 cannot be read into the contract. It is not a statute of procedure, nor remedy, but is one as to liability, and if carried back and made a part of the contract it would impair the same by creating a liability where one by statute did not exist when the contract was made. So that this case must be determined other than from these statutes. Plaintiff relies on some of the following cases:

In Ottumwa v. Parks, 43 Iowa, 119, a person for his own private purpose dug a cellar, without benefit or concern to the city, without a sufficient barrier. The city officers knew all this. A party fell into the cellar and was injured, for which he obtained a judgment against the city. The lot owner appeared and took part in the defense. It was held that the city could recover from the lot owner digging the cellar. But in that case there was a law by city ordinance prohibiting such a work without securing the same, so that no person fall therein.

Keokuk v. Independent District, 53 Iowa, 352, 5 N.W. 503, 36 Am.Rep. 226, was a like case, except there was no such ordinance. It was held that the city could not recover back the money thus paid by reason of a judgment paid off rendered in a personal injury action against the...