E. O. Dorsch Elec. Co. v. Plaza Const. Co., 52411
| Citation | 413 S.W.2d 167 |
| Decision Date | 10 April 1967 |
| Docket Number | No. 2,No. 52411,52411,2 |
| Parties | E. O. DORSCH ELECTRIC CO., a Corporation, Appellant, v. PLAZA CONSTRUCTION CO., Inc., et al., Respondents |
| Court | United States State Supreme Court of Missouri |
Cox, Cox, Cox & Moffitt, William A. Moffitt, Jr., Robert C. Brinkman, St. Louis, for plaintiff-appellant.
Peper, Martin, Jensen, Maichel & Hetlage, Richard A. Hetlage, Robert O. Hetlage, Greensfelder, Hemker, Wiese, Gale & Chappelow, Mark R. Gale, St. Louis, for respondents.
STOCKARD, Commissioner.
By its petition plaintiff sought damages in the amount of $21,086.30 for negligence. The trial court entered summary judgment for defendants and plaintiff has appealed.
Plaintiff alleged in its petition that as a subcontractor it had 'installed under a contract with the general contractor, various kinds of electrical material' in buildings known as the St. Louis Plaza Project in the City of St. Louis, and that following such installation and 'while defendants were engaged in erecting and constructing the brick and concrete on said buildings, said defendants, their agents and servants, negligently and carelessly damaged and destroyed certain parts of the electrical work and material which had been previously installed in said buildings by plaintiff, causing said work, labor and material to be unfit for use, which required plaintiff to and it did replace the same, all to the damage of plaintiff in the sum of $21,086.30.'
In answer to a request for admissions pursuant to Civil Rule 59.01, V.A.M.R., plaintiff admitted that 'the electrical material originally installed and the work and labor originally required to install the same, was installed under one or more' of four contracts, attached to the request for admissions, and subsequently identified, but it further stated that after the execution of the contracts they were 'changed and modified by agreement of the parties.' No explanation was made as to what the asserted changes and modifications consisted.
Thereafter, defendants filed a motion for summary judgment on the theory that pursuant to the provisions of the applicable contracts plaintiff did not own and had no interest in or duty to restore any electrical material or work allegedly demaged by the negligence of defendants, that plaintiff had a contract right to full payment for any repair or replacement work done by it at the request of the general contractor, and that for these reasons as a matter of law plaintiff did not and could not sustain any damage as the result of the alleged negligence. Defendants filed an affidavit in support of their motion for summary judgment to which were attached the four subcontracts referred to in plaintiff's answer to the request for admissions, and to which were also attached four groups of instruments, three instruments in each group applicable to each of the subcontracts. Each group of instruments pertain to the construction of a separate project, and the corresponding instruments in each group are similar. We shall refer to the terms of but one subcontract and the terms of the three instruments referred to therein.
Instrument 'B' was a 'cost plus' construction contract between First Plaza Redevelopment Corporation as 'Owner' and Plaza Construction, Inc. as 'Contractor' for 'all the materials and * * * work within the property lines, shown on the drawings and specifications.' Instrument 'C' was a deed of trust between the Owner and Manufacturers Trust Company with the Mercantile Trust Company being named as Trustee. Instrument 'A--1' was an agreement between Owner and Paul Tishman General Contractor, Inc., and Fruin-Colnon Contracting Company, operating as a joint venture and referred to as 'Agents,' wherein it was provided that Agents were in effect to represent the Contractor in the performance of the contract with authority to negotiate subcontracts. Instrument 'A' was a subcontract between Agents and plaintiff wherein it was provided that plaintiff was to perform certain electrical work provided for in the contract between Owner and Contractor, and was one of the contracts referred to in the request for admissions and plaintiff's answer thereto. All of these instruments were attached to and incorporated as a part of defendants' motion for summary judgment, and although plaintiff stated in its answer to the request for an admission that Instrument 'A' had been 'changed and modified by agreements of the parties,' at the hearing on the application for summary judgment plaintiff filed no affidavit and offered no proof to the effect that the terms of any of the instruments attached to the application for summary judgment were not as therein set forth.
The trial court found that the 'terms of the contract are not in dispute,' and further found the facts as follows:
On this appeal plaintiff asserts that the trial court erred in sustaining defendants' motion for summary judgment because 'there were, under the pleadings and affidavits, many fact issues to be determined.' Defendants, on the other hand, contend that summary judgment was properly entered 'because the written contracts between plaintiff and defendants establish conclusively that plaintiff did not own and had no interest in or duty to restore the work allegedly damaged by the negligence of defendants, that plaintiff had a contract right to full payment for any repair or replacement work done by it, and that plaintiff did not and could not sustain any damage by reason of the alleged negligence of defendants.'
Prior to considering the applicable provisions of the contracts, we shall set forth briefly the basic rules relating to entering summary judgment.
Summary judgment is authorized where, but only where, the 'pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that any party is entitled to a judgment as a matter of law.' Civil Rule 74.04(c), V.A.M.R. In addition to the above, it is further provided that 'In no case shall a summary judgment be rendered on issue triable by jury or the court without a jury unless the prevailing party is shown by unassailable proof to be entitled thereto as a matter of law.' Civil Rule 74.04(h), V.A.M.R. 'As its name indicates, a summary judgment is an extreme and drastic remedy and great care should be exercised in utilizing the procedure,' Cooper v. Finke, Mo., 376 S.W.2d 225, 229, and the appellate court, as well as the trial court, must view the record on summary judgment in the light most favorable to the party against whom the judgment is rendered. Anderson v. Steurer, Mo., 391 S.W.2d 839, 842.
In this case the motion for summary judgment is based upon the pleadings, which incorporated the contract documents by reference, and the admissions of plaintiff in its answer to the request for admissions. Plaintiff filed no affidavits in opposition to the motion for summary judgment, a circumstance hardly understandable in view of its assertion in its answer to the request for an admission that the subcontracts to which it was a party had been 'changed and modified by agreements of the parties.' Civil Rule 74.04(e) provides in part that The failure of plaintiff to file any counteraffidavit or present any proof in respect to the motion for summary judgment forces us to accept as true, for the purposes of this appeal, that there is no factual issue concerning the terms of the contracts attached to the motion for summary judgment. However, this omission on the part of plaintiff does not necessarily require that judgment be entered against it. As stated in Cure v. City of Jefferson, Mo., 380 S.W.2d 305, 310, ...
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