Curtis v. Mississippi State Highway Commission, 44235

• Decision Date: 20 February 1967
• Docket Number: No. 44235,44235
• Citation: 195 So.2d 497
• Parties: Perry CURTIS et ux. v. MISSISSIPPI STATE HIGHWAY COMMISSION and Continental, Incorporated.
• Court: Mississippi Supreme Court

Page 497

195 So.2d 497

Perry CURTIS et ux. v. MISSISSIPPI STATE HIGHWAY COMMISSION and Continental, Incorporated.

No. 44235.

Supreme Court of Mississippi.

Feb. 20, 1967.

Joe N. Pigott, McComb, for appellants.

B. D. Statham, Magnolia, Butler, Snow, O'Mara, Stevens & Cannada, Roger C. Landrum, John A. Crawford, Jackson, for appellee.

BRADY, Justice.

This is an appeal by Perry Curtis and wife, Eva Curtis, from an order of the Circuit Court of Pike County, Mississippi, wherein the court overruled a demurrer and sustained a special plea of accord and satisfaction of the Mississippi State Highway Commission, one of the appellees, sustained a special plea of the appellee, Continental, Incorporated, and dismissed appellants' cause of action under the terms and conditions of the special plea. The Mississippi State Highway Commission on cross appeal contends that the trial court should have sustained its demurrer. Continental cross appeals contending that the trial court erred in failing to sustain its general demurrer to appellants' amended declaration. The record discloses the following essential facts:

On September 2, 1965, Perry Curtis and Eva Curtis, appellants, instituted this action against the Mississippi State Highway Commission and Continental, Incorporated, appellees and cross-appellants, in which they averred that they were the owners of the W 1/2 of the NE 1/4 and the E 1/2 of the N.W 1/4 of Section 34, Township 1 North, Range 7 East, Pike County, Mississippi, which lies east of Interstate Highway 55. Appellants charged that during the past two years appellees had caused dirt, sand and silt to wash into and destroy the effectiveness of a natural creek and two clear water ponds on appellants' land, thereby causing the said stream and ponds to become polluted and to overflow and damage appellants' pasture. Appellants' declaration charged that the Highway Commission had negligently designed and Continental had negligently constructed Interstate Highway 55 which borders appellants' property on the west and that the damage to said property was the direct and proximate result of the gross and wanton negligence of the appellees.

Mississippi State Highway Commission filed an answer, a general demurrer and a special plea of accord and satisfaction. A copy of the eminent domain petition and the judgment thereon under which a portion of appellants' property had previously been condemned for the construction of Highway 55 was exhibited with the answer and showed that appellants had been awarded a judgment of $18,000 in damages for the portion of their land used in the highway construction. The demurrer was sustained and leave to amend granted. Appellants' amended declaration reiterated the damage previously alleged. Appellants additionally alleged that the culverts underneath the highway were so constructed and maintained that they cannot use them to cross from one side of the interstate to the other. In their amended declaration appellants alleged that the denial of the use of their land by appellees' conduct amounted to a wrongful taking and that damages for the wrongful taking were not included in the judgment awarded in the eminent domain proceedings. To this amended declaration the Highway Commission filed a demurrer and a special plea of accord and satisfaction, as did Continental. The trial court overruled the demurrer of the Highway Commission but sustained its special plea. Continental's special plea was sustained, and appellants' cause of action was dismissed under the terms of this special plea.

There are two basic questions presented by this appeal:

(1) Were appellants compensated for the damage complained of in the award of the eminent domain proceedings insofar as the Highway Commission is concerned?

(2) Does the amended declaration fail to state a cause of action against Continental?

In determining the second question we must first ascertain under what circumstances a contractor, such as Continental, engaged in the construction of a public improvement, can be held liable for damage to property arising therefrom. The following authorities indicate that a public contractor, when acting for a principal in the construction of a proposed public improvement, cannot be held liable for injuries resulting therefrom in the absence of negligence on the part of the contractor. In 29A C.J.S. Eminent Domain § 195 at 858 (1965), we find the following:

(A) contractor or agent lawfully acting in behalf of the principal in making a proposed public improvement is not personally liable if such improvement is made without negligence.

In Marin Municipal Water District v. Peninsula Paving Company, 34 Cal.App.2d 647, 94 P.2d 404 (1939), the water district sued the contractor, Peninsula Paving Company, on the theory of negligence for injuries received from defects in a public improvement. The proof failed to show negligence but showed that the work was done in accordance with the plans and specifications and under the direction of the state highway engineers. In holding that the plaintiff was restricted to a possible claim against the public agency having the work done to recover damages under a constitutional provision similar to ours regarding compensation for the damaging or taking of private property, the California court held:

'Conceding, for the sake of the argument, that the effect of the constitutional provision is to make the state, or a public agency by it employed in the construction of a work designed to protect the lives and property of a large community, liable for indirect and consequential damages, such as were alleged and proved in this case, and which could not have been estimated or compensated in advance, although some damage might naturally have been apprehended, it does not follow that the contractor, executing the work carefully and properly according to the plan, would be liable. On the contrary, since in the case supposed the state or corporation would be liable, not for a tort, but only upon its obligation to compensate the damages resulting from the rightful exercise of its power, the liability would rest upon it alone, and the contractor, who has merely constructed the work carefully and properly according to the plan, will be exempt from any liability.' (34 Cal.App.2d at 655, 94 P.2d at 407.) (Emphasis added.)

In Tidewater Construction Corporation v. Manly, 194 Va. 836, 75 S.E.2d 500 (1953), the Virginia Supreme Court reinforced the theory of non-liability of a contractor in a factual situation similar to that in the present case. The court there held that a contractor lawfully acting on behalf of a principal which is authorized to make public improvements in accordance with plans cannot be held liable without negligence on the contractor's part, regardless of whether property is taken or damaged by the public improvements.

These authorities clearly indicate that the proposition is sound that when a contractor such as Continental, engaged in the construction of a public improvement, is not sufficiently charged with negligent acts or omissions in carrying out the plans and specifications furnished him, there will be no liability, even though the state agency furnishing those plans and specifications is held accountable under the theory of damage to or the taking of private property without just compensation.

In our opinion the allegations of the amended declaration fail to state a cause of action against Continental predicated upon negligence. The amended declaration makes no specific charge of any independent negligent acts or omissions on the part of Continental. There can be no doubt that Continental, as contractor, was entitled to rely upon the plans and specifications of the Highway Commission and would not be liable for any defects contained therein, in the absence of negligence. Nor does the amended declaration allege that Continental should have been placed on notice that the work, if accomplished in accordance with the plans of the Highway Commission, would likely cause damage to appellants' property. Appellants fully predicate their claim for damages upon questions of design and planning since in their brief they assert that the damage to their property resulted from the placing of a '34-foot high fill of dirt across the right-of-way taken without constructing or using any retaining walls or revetments to prevent the dirt eroding and washing down upon the property * * *.' There can be no doubt that all questions of design and planning were under the exclusive control of the Highway Commission, not Continental. Thus, under the state of the pleadings the amended declaration did not raise any question of liability on the part of Continental. The minimum...