Grennell v. Cass County
| Decision Date | 08 April 1922 |
| Docket Number | 34583,34390,34587 |
| Citation | 187 N.W. 504,193 Iowa 697 |
| Parties | W. J. GRENNELL et al., Appellants, v. CASS COUNTY et al., Appellees (and five other cases) |
| Court | Iowa Supreme Court |
Appeal from Audubon District Court.--E. B. WOODRUFF, Judge.
THE six above entitled cases are all of the same character, and dependent upon like statements of fact. In each, a recovery is sought of damages for personal injury; and in each case the appeal to this court is from a ruling by the trial court sustaining a demurrer to the petition, as finally amended and substituted. The material allegations of the petition will be found stated in the following opinion. The situation will be more readily understood if we say at the outset that the injuries to all the six plaintiffs were received in the same accident.--Affirmed in part; reversed in part.
Affirmed in part; reversed in part.
Swan Clovis & Swan, for appellants.
W. A Follett, Ralph Pringle, and P. E. Roadifer, for appellees.
WEAVER, J. PRESTON, FAVILLE, and DE GRAFF, JJ., concur.
The petition demurred to alleges that, on July 12, 1920, the defendant Cass County and the defendant Wilson Concrete Company, hereinafter spoken of as the contractor, entered into a written agreement, whereby said contractor undertook, for a stated consideration, to furnish the necessary labor and materials, and to construct a bridge or culvert and bulkhead on the primary road between the cities of Atlantic and Lewis, according to the plans and specifications prescribed therefor, and made a part of the contract. Among the specifications so included are the following:
It is further alleged that, in pursuance of such agreement, the contractor did proceed with the construction of said bridge or culvert, the same being constructed of 36-inch tile; that said tile were first laid on the west side of the road, after which the tile and bulkhead on the east side or end were put in place; and that, in so doing, the contractor willfully and negligently obstructed said bridge, by placing thereon, and partly over said culvert, and wholly within the limits of the bulkhead, and upon top of said bridge, a pile of dirt, three or four feet in height, and sloped over into that part of the bridge which had previously been open to travel; that, on or about September 30 or October 1, 1920, the contractor finished pouring the concrete into the forms for the bulkhead, and on October 2, 1920, removed its men and apparatus from the bridge, but left the forms still on the bulkhead and the pile of dirt on the bridge, wholly within the limits of the bulkhead, all of which was known to the defendant Zelmer, supervisor of the district in which the work was done; and that said contractor and the county and its board of supervisors left said pile of dirt upon the bridge, without any guard or protection by a watchman or by barriers or warning lights. It is further alleged that, on the night of October 3, 1920, said obstruction not having been removed or in any manner guarded or protected, the plaintiff, having no notice of said obstruction, was lawfully traveling said road in an automobile; and that, by reason of such obstruction, and without negligence on his part or on the part of the driver of said automobile, he was thrown from the car, and thereby severely injured, for which he demands damages. It is also alleged that, at the time of such accident, the forms for the bulkhead were still in place, and that the contractor had not notified the board of the completion of the work, or of the removal of the crew of workmen therefrom. It is further made to appear that said bridge or culvert crosses a dry run, along a natural watercourse, and that its cost was in excess of the amount which could lawfully be expended thereon by the township, and that the space which the obstruction left open to public travel did not exceed eleven feet, and was wholly on the west side of the traveled way. To this petition the defendants demurred. The eleven grounds assigned for such demurrer may be condensed, as follows: (1) That the facts stated in the petition show affirmatively that the bridge in question was not a county bridge; (2) that for any alleged neglect in the work of construction or in the care and protection of the bridge, no action will lie against the county or its officers; (3) that the allegations of the petition show affirmatively that plaintiffs are chargeable with contributory negligence; (4) that the petition shows affirmatively that all the defendants, except Cass County, are the officers, agents, employees, and representatives of said county, and are entitled to the same immunity against claims for damages which the law provides for the county itself. The trial court sustained the demurrer generally in each of the several cases, and from this ruling the plaintiffs appealed.
I. Giving first attention to the plaintiffs' demand for recovery against the county and its officers, it is to be said that, while appellants do not expressly concede the nonliability of said defendants, it is manifest that they recognize that the trend of our more recent decisions sustains the ruling of the trial court in this respect. See Snethen v. Harrison County, 172 Iowa 81, 152 N.W. 12, and later cases following that precedent. Without reopening that discussion, we think it must be held that the trial court did not err in sustaining the demurrer to the petition, so far as it attempts to state a cause of action against the defendants Cass County and its auditor and supervisors.
II. Before taking up the petition as against the contractor, it is proper to say that its counsel, by an amended abstract, call attention to the fact that appellants' summary of the petition and its exhibits omits certain specifications which appellee thinks essential to a fair understanding of the pleading. Among these items are the following: (1) "That the board of supervisors and engineer shall have supervision of the contract;" (2) that the work is to be done in strict conformance with the plans and specifications and drawings "and such instructions as may be given from time to time by the engineer * * * work shall be subject at all times to the inspection of the highway commission;" (3) that usable material shall not be cut or otherwise destroyed, and on completion of the work, the contractor shall pile this material in or near the bridge site, as directed by the engineer; (4) that the contractor shall do no filling work around the completed bridge or culvert without permission by the engineer; and (5) that, "unless otherwise specified in the contract, the board will do the filling."
These matters are chiefly relevant to the contractor's contention in this case that it does not occupy the relation of independent contractor, but is rather the mere employee or representative of the county, and as such is not chargeable with liability for damages. In our opinion, there is no room to doubt that the appellee Wilson Concrete Company was neither the servant, agent, nor representative of the county, but that its relation to the county was that of independent contractor. Fitzgibbon v. Western Dredging Co., 141 Iowa 328, 117 N.W. 878; Wood v. Independent Sch. Dist., 44 Iowa 27; Bennett v. Incorporated Town of Mt. Vernon, 124 Iowa 537, 100 N.W. 349; Teeters v. City of Des Moines, 173 Iowa 473, 154 N.W. 317; Humpton v. Unterkircher, 97 Iowa 509, 66 N.W. 776; Solberg v. Schlosser, 20 N.D. 307 (127 N.W. 91). The contractor undertook to furnish all the necessary labor, materials, tools, and equipment, and to perform the entire contract for construction of the bridge at a gross price, and was subject to no control by the county, other than supervision by its engineer to see that the work was being done according to the plans and specifications; and if this does not fill to its full measure the test of an independent contractor, it would be difficult to frame a better definition. United Gas Impr. Co. v. Larsen, 182 F. 620 (105 C.C.A. 486); Anderson v. Tug River Coal Co., 59 W.Va. 301, 53 S.E. 713.
It is further argued by counsel for the contractor that, even if the concrete company is an independent contractor, it is nevertheless, immune from liability, because the construction of the bridge was a work of public improvement, done...
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