City of Phoenix v. Parker

• Citation: 67 P.2d 226,49 Ariz. 382
• Decision Date: 19 April 1937
• Docket Number: Civil 3787
• Parties: CITY OF PHOENIX, a Municipal Corporation, and CHARLES TORSON and T. M. TORSON, Copartners, Doing Business Under the Firm Name and Style of TORSON CONSTRUCTION COMPANY, Appellants, v. MARY PARKER, Appellee
• Court: Arizona Supreme Court

67 P.2d 226

49 Ariz. 382

CITY OF PHOENIX, a Municipal Corporation, and CHARLES TORSON and T. M. TORSON, Copartners, Doing Business Under the Firm Name and Style of TORSON CONSTRUCTION COMPANY, Appellants, v. MARY PARKER, Appellee

Civil No. 3787

Supreme Court of Arizona

April 19, 1937

APPEAL from a judgment of the Superior Court of the County of Maricopa. J. C. Niles, Judge. Judgment reversed as to defendant city and affirmed as to other defendants.

Mr Irving A. Jennings, Mr. Frank W. Beer, Mr. Frank H. Swenson and Messrs. Townsend & Jenckes, for Appellants.

Messrs Cox & Moore, for Appellee.

OPINION

ROSS, J.

This is an action by Mary Parker against the City of Phoenix and Charles Torson and T. M. Torson, copartners, doing business under the name of Torson Construction Company, for damages for personal injuries sustained by her on the night of July 5, 1935, when she fell, as she alleges, into an open, unguarded, and unlighted ditch or excavation, at the intersection of Seventh Avenue and Mongolian Street, made and excavated by defendants to be used as a part of the city's storm sewer system then in course of construction. Seventh Avenue and Mongolian Street at their intersection are outside the city limits but are public highways. The Torson Construction Company had the contract with the city to install the storm sewer system and had dug such ditch or excavation as an outlet extension of the system. The contractor filed an answer denying generally the allegations of the complaint and pleading contributory negligence. The city's answer consists of a general demurrer and a general denial.

The case was tried to a jury, which returned a verdict against the defendants for the sum of $9,200, and from the judgment entered thereon and the order overruling the motion for new trial the defendants have appealed.

The court instructed the jury that under the contract between the city and the contractor the city was not relieved from the duty to keep the place of the work in a safe condition, and if under the evidence and instructions they found for plaintiff, the verdict should be against both the city and the contractor. This instruction, it is said, is erroneous for the reason it makes the city liable for the tortious acts of the contractor, which was an independent contractor.

The common-law duty of the city to keep its streets in a reasonably safe condition for persons using them is not involved, since the place where the plaintiff is claimed to have been injured is outside the city limits.

The only question, then, is as to whether the Torson Construction Company was an independent contractor or a servant of the city in doing the work of installing the sewer system. If the city retained the control, or right to control, the contractor and its employees as to the manner in which they were to perform the contract, the instruction was correct; but if the contract called for a completed and finished job, or a stated physical result, leaving to the contractor the manner of doing it, then the contractor in doing it was independent and it only was liable. Lee Moor Contracting Co. v. Blanton, ante, p. 130, 65 P.2d 35; Consolidated Motors, Inc., v. Ketcham, ante, p. 295, 66 P.2d 246, decided March 29, 1937, by this court.

The only evidence in the record of the relation of the city to the contractor is the contract itself. The improvement was what is known as a PWA project and the funds to pay for it were advanced by the national government. By reason thereof, the terms of the contract included many conditions inserted to make it conform with the PWA Code. Including proposals, plans, specifications, bidding requirements, general conditions, etc., it covers some two hundred pages. It is too voluminous to insert here. The gist of it is contained in article 1 thereof, reading as follows:

"The Contractor shall construct and complete in good, workmanlike, substantial manner and to the satisfaction of the City Engineer of the City of Phoenix, and of the Government Engineer, Storm Sewer System Improvements in the City of Phoenix, as set forth in the bidding schedule hereto attached, and furnish at his own cost and expense all necessary machinery, tools, apparatus, materials and labor, to complete the work in the most substantial and workmanlike manner, according to the specifications hereto attached and the plans therefor on file with the City Engineer, and such modifications of the same and such other directions as may be made by the City Engineer and the Government Engineer as provided herein."

This clearly called for a finished improvement according to definite and certain plans and specifications. Our attention is called to certain conditions of the contracts as showing that the contractee retained control of the construction and the manner of the performance of the work, such as the provisions against employing convicts, or using convict-made materials, or employing aliens, who had not declared their intention to become citizens, or nonresidents of the city or county; limiting, for certain laborers, the hours to not more than eight per day or thirty per week; forbidding work on Sundays or holidays; the exaction of an agreement from the contractor to carry on the operations in a manner not to obstruct or discommode or injure third parties, and to that end to maintain temporary bridges over the works at street intersections or private ways as directed by the city engineer, or to provide proper fencing or watchmen and the placing of signal lights near dangerous work, and to carry full coverage for workmen's compensation and public liability insurance; and other but similar details. These provisions of the contract are only incidental to the work to be performed and do not refer, either by word or implication, to the actual physical work of making the improvement; they are protective measures that grow out of the contract, and their performance or doing is only incidental to the contract. The contract is much like one where a builder contracts to construct a house according to certain plans and specifications, furnishing the workmen and all materials.

Looking to the contract to ascertain the relation between the city and the contractor, it seems quite certain that such relation was that of principal and independent contractor and not that of master and servant. The instruction was erroneous and should not have been given. The court should have advised the jury at the close of the case that the city was not liable for the tortious act of the contractor.

It is next complained that plaintiff's attorneys were guilty of prejudicial misconduct in drawing from witnesses the fact that the contractor was carrying liability insurance. We have expressed, in no equivocal way our strong disapproval in personal injury cases of letting the jury know the defendant carries liability insurance, and in the recent case of Consolidated Motors, Inc., v. Ketcham, supra, we collated and analyzed the cases and reaffirmed our disapproval of the conduct of attorneys who adroitly by examination or cross-examination develop the fact that the defendant carries liability insurance. It appears here, however, that the evidence that the...