Davis v. Nelson-Deppe, Inc.

• Decision Date: 06 March 1967
• Docket Number: NELSON-DEPP,No. 9815,INC,9815
• Citation: 424 P.2d 733,91 Idaho 463
• Parties: W. L. DAVIS, Plaintiff-Appellant, v., Defendant-Respondent.
• Court: Idaho Supreme Court

Page 733

424 P.2d 733

91 Idaho 463

W. L. DAVIS, Plaintiff-Appellant, v. NELSON-DEPPE, INC., Defendant-Respondent.

No. 9815.

Supreme Court of Idaho.

March 6, 1967.

Cunningham, Schwartz & Doerr, Twin Falls, for appellant.

Parry, Robertson & Daly, Twin Falls, for respondent.

McFADDEN, Justice.

W. L. Davis, plaintiff, the owner and operator of a tractor-trailer combination, brought suit to recover damages to his equipment occasioned when it went off a portion of U. S. Highway No. 93, then under reconstruction and repair by the defendant, Nelson-Deppe, Inc. The case was tried before a jury and following a verdict in favor of the defendant, judgment was entered thereon, from which judgment this appeal was perfected.

Briefly, the facts leading to this litigation show that the defendant company had entered into a contract with the State of Idaho through the Department of Highways to recondition and resurface 6.75 miles of U. S. Highway No. 93 in Jerome County. Incorporated into the contract were certain of the Idaho Department of Highways 'Standard Specifications for Highway Construction,' including the requirements to be followed in erecting appropriate signs, barricades and warning devices, which devices were required by the 'Standard Specifications' to meet the specifications provided by the 'Manual of Uniform Traffic Control Devices' as appeared in the 1961 edition published by the Bureau of Public Roads.

On August 8, 1962, the day of the accident, the defendant was engaged in preparing a 'road-mix' of gravel and oil, along a portion of the highway. Before the end of the day's shift, the road-mix was bladed up to form a rick or windrow of the road-mix surfacing material in the center of the twenty-four foot highway. This rick was about eight feet in width at the bottom, about two feet high, and sloped to a peak. The north-bound traffic was required to travel in an eight-foot lane on the east of the rick and the southbound traffic was required to travel in an eight-foot lane on the west. A thirty-inch warning sign, on which was printed 'Road Construction Ahead,' was placed on the south end of the rick, with a small red reflctor and a kerosene flare pot immediately in front of the sign. Following the accident involved herein, the sign was found face down on the roadway with its face blackened as though by burning and the flare pot unlit.

On the day of the accident the plaintiff, an independent trucker operating a diesel truck and refrigerated semi-trailer, was engaged in transporting a load of fresh, mixed produce from California to a Canadian destination and had arrived in Twin Falls earlier on the evening of the accident. The plaintiff and his relief driver stopped at a coffee shop, and when they left, the plaintiff started driving the equipment. After leaving Twin Falls, plaintiff drove north on Highway No. 93 and entered the construction zone after dark. Plaintiff testified that he was driving, his relief driver riding alongside him, and they stopped, as required, when they arrived at the intersection of Highway 25 with Highway 93. They the entered the construction zone of Highway 93, climbing up a slight grade at about twenty miles per hour. He stated that he observed a sign reading 'Road Under Construction,' that he continued on at about thirty to thirty-five miles per hour and observed a sign reading '35 Miles an Hour Beware of Flying Rocks'; that the road was newly laid of oil-gravel mix, very black, which absorbed the rays of his headlights. He continued on about a mile further when his truck suddenly veered to the left over and across the rick of road-mix sufacing material, across the south-bound lane of travel, and came to a stop off the highway some short distance away with his truck and trailer badly damaged.

Subsequent investigation revealed that the left front wheel of plaintiff's truck had sunk into the rick of the gravel-oil material piled in the center of the highway and that the truck had swerved to the left over this rick and then off the highway. Neither plaintiff nor his driver saw this rick until after the accident. Neither they nor the investigating police officer saw the warning devices placed by the defendant at the end of the rick until after the accident when they went to investigate the rick.

At the trial, the construction contract between the defendant and the Department of Highways, with the Department of Highways' 'Standard Specifications for Highway Construction,' and Bureau of Public Roads' Manual on Uniform Traffic Control Devices' were admitted into evidence for the limited 'purpose of showing circumstances which might be considered by the jury in arriving at the duty of due care owed by the defendant. * * *'

Plaintiff's paramount contention is that the trial court erred in denying his motion to amend his amended complaint to allege a claim for relief based on the theory that he was a third party beneficiary under the contract between the defendant and the Department of Highways and was thus entitled to maintain an action for damages based upon the breach of this contract. In particular, plaintiff points out that the defendant failed to comply with the requirements of the 'Standard Specifications' and manual on 'Uniform Traffic Control Devices,' asserting that defendant did not maintain any 'Road Construction 500 Feet' sign of forty-eight inches dimension; that the sign placed on the windrow was not reflectorized and was found lying face down and the torch was unlit and inadequate to illuminate the sign. He further contends that there were no barricades placed in front of the windrow of blacktop material in the middle of the highway and that there was a breach of the requirements of the contract properly to illuminate.

Plaintiff asserts that 'in addition to the duties the common law places on Nelson-Deppe, this defendant has, by its own contract, assumed certain specific duties which are for the benefit of third parties, and these third parties may base claims against the defendant for damages arising from the breach of these covenants.' In support of this assertion, plaintiff argues that any other construction of the agreement would make the provisions of the contract requiring complance with the specific items as to signs, warnings, markings, barriers, etc., wholly meaningless, since the only persons that would be harmed by failure to comply with these provisions would be members of the traveling public using the highway.

It would appear from the contention of the plaintiff that he would have this court impose an absolute duty of care on the part of the contractor gauged by the contract requirements, regardless of the requirement of causation between breach and damages and regardless of what would be the common law standard of reasonable care.

Cases cited by the plaintiff in support of his theory include Anderson v. Rexroad, 175 Kan. 676, 266 P.2d 320 (1954). Therein in that court considered the sufficiency of a complaint by a third party for damages arising from destruction of his house by fire, allegedly caused by a contractor severing a gas line; the contractor had specifically agreed to 'be liable for all damages to buildings * * * or other property * * *.' In that case the primary issue was whether a third party was entitled to maintain an action on the contract. That court held the complaint was sufficient. However, in Earl E. Roher Trans. & S. Co. v. Hutchinson Water Co., 182 Kan. 546, 322 P.2d 810 (1958), the Supreme Court of Kansas distinguished the case of Anderson v. Rexroad, supra, when it considered a claim by a citizen for damages for loss by fire of his property against a franchised water company which had agreed with the city to maintain certain water pressure, the plaintiff claiming breach of these agreements by failure to furnish water pressure agreed upon. In denying the plaintiff's contention that it was a third party, entitled to maintain the action, the Supreme Court of Kansas reaffirmed the holding in Anderson v. Rexroad, but pointed out that in the Anderson case there was clearly a third party beneficiary contract, whereas in the Earl E. Roher Trans. & S. Co. case there was nothing of that nature in the contract between the water company and the city.

Plaintiff also cites the case of City of Brooklyn v. Brooklyn City R.R. Co., 47 N.Y. 475, 7 Am.Rep. 469, (Ct.App.N.Y. 1872). There the plaintiff city brought suit against the defendant railroad company to recover sums paid by the city on a judgment brought against it arising from injury to a citizen occasioned by a defective street. The issue before the court was whether the city could enforce a provision of the contract between the railroad company and the city that the railroad company would keep the city's streets in repair. The court held that the railroad company was liable to the city for such neglect. The rights of a third party to maintain the action were not involved.

The case of Marion County Const. Co. v. Claycomb, 52 Ind.App. 681, 98 N.E. 744 (1912), also cited by appellant, does not in our opinion aid the plaintiff in his contentions. The issues before the court in that case involved the sufficiency of the evidence to sustain a special verdict in favor of the plaintiff. It can hardly be considered as authority for the proposition for which it is cited. Therein the court discussed the duty of a party causing an excavation to use reasonable care in protecting persons lawfully using such street from injury on account of such excavation. It can hardly be construed as authority for plaintiff's position that a third party may maintain a contract action on a construction contract for damages received.

Sutro Co. v. Paramount Plastering, Inc., 216 Cal.App.2d 433, 31 Cal.Rptr. 174 (1963), also cited by plaintiff, contains general language pertaining to third party contracts with which we have no quarrel, but that case involved a lender's claim in interpleader. The appellate...