Heman Const. Co. v. City of St. Louis

• Decision Date: 03 March 1914
• Docket Number: No. 16,183.,16,183.
• Citation: 256 Mo. 332,165 S.W. 1032
• Parties: HEMAN CONST. CO. v. CITY OF ST. LOUIS.
• Court: Missouri Supreme Court

165 S.W. 1032

256 Mo. 332

HEMAN CONST. CO. v. CITY OF ST. LOUIS.

No. 16,183.

Supreme Court of Missouri, Division No. 1.

March 3, 1914.

1. INDEMNITY (§ 3)—PUBLIC IMPROVEMENTS— CONTRACTS—INDEMNITY PROVISION—VALIDITY.

An agreement by a sewer contractor with a city, to indemnify the city for injuries to third persons resulting from the contractor's negligence in constructing the sewer, does not contravene public policy, and is valid.

2. INDEMNITY (§ 9) — INDEMNIFICATION OF CITY—EXTENT OF LIABILITY.

Under a provision in a sewer contract executed with a city, binding the contractor to obey laws controlling those engaged in the work, and to indemnify the city against all suits brought on account of any injuries sustained because of any act or omission of the contractor in doing the work, the contractor could not recover against the city for one-half of a joint judgment against it and the city, for personal injuries sustained by the contractor's negligence.

3. MUNICIPAL CORPORATIONS (§ 733)—LATERAL SUPPORT—NEGLIGENCE.

The failure of a sewer contractor to notify a property owner of his intention to excavate near and below the level of the foundation of the owner's building was actionable negligence, if injury resulted from such excavation.

4. MUNICIPAL CORPORATIONS (§ 352)—CONSTRUCTION.

A sewer contract should be construed according to the usual import of its language.

5. INDEMNITY (§ 9)—SEWER CONTRACTS—LIABILITY.

A contractor, suing to recover from a city one-half of a judgment against the contractor and a city, which the contractor was compelled to pay, for injuries to property abutting on an alley by the contractor's omission to give notice to the owner of intention to excavate, cannot escape liability on the ground that there was a discrepancy between the actual width of the alley and that given to it in the specifications, since, unless the contract covered the excavation causing the injury, the contractor had no authority to make it, and hence the contractor cannot recover herein.

Appeal from St. Louis Circuit Court; Hugo Muench, Judge.

Action by the Heman Construction Company against the City of St. Louis. From a judgment for plaintiff, defendant appeals. Reversed.

William E. Baird and Truman P. Young, both of St. Louis, for appellant. Rodgers & Koerner, of St. Louis, for respondent.

BLAIR, C.

Under a contract with defendant, plaintiff in constructing a sewer excavated along the lot line of property owned by a Mrs. Gerst, and, as a result, a building erected on the lot was damaged. Neither plaintiff nor defendant had notified Mrs. Gerst of the intent to excavate, and in these circumstances the latter recovered a joint judgment against the present plaintiff and defendant for the damage to her property, and the plaintiff here, having been compelled to pay that judgment, brought this action against the city to recover one-half the amount thereof. From a judgment for plaintiff, the city has appealed.

One of the general stipulations in the contract under which plaintiff constructed the sewer in question was as follows: "The first party [the present plaintiff] will be required to observe all city ordinances in relation to obstructing streets, maintaining signals, keeping open passageways and protecting the same where exposed, and generally to obey all laws and ordinances controlling or limiting those engaged on the works, and the said first party, contractor and securities, here expressly bind themselves to indemnify and save harmless the city of St. Louis from all suits or actions of every name and description brought against the said city for or on account of any injuries or damages received or sustained by any party or parties by or from the acts of said contractor, or by his servants or agents in doing the work herein contracted for, or by or in consequence of any negligence in guarding the same, or any improper materials used in its construction, or by or on account of any act or omission of the said contractor or his servants or agents." Defendant asked an instruction in the nature of a demurrer to the evidence, and also requested the court to give an instruction, to the effect, in substance, that the above-quoted paragraph of the contract barred recovery. Both requests were refused, and these rulings, and others, are assigned for error. The statute (section 5431, R. S. 1909) provides that "defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and to the same extent as defendants in a judgment in an action founded on contract." Considerable portions of the briefs are devoted to the question whether this case falls within the statute as heretofore interpreted by this court. In the view we take of the case that question, for reasons subsequently to be stated, need not be discussed.

Neither is the decision in Gerst v. City of St. Louis and the Heman Construction Company, 185 Mo. 191, 84 S. W. 34, 105 Am. St. Rep. 580, conclusive upon the question now presented. In that case, so far as the city was concerned, the inquiry was as to the liability of the city to Mrs. Gerst for damages resulting from the failure of the city to perform, or have its contractor perform, the duty to give notice of the intent to excavate along the line of the property on which the Gerst building stood. There is nothing in that case which militates in any way against the right of the city to enforce a bond given by a contractor to protect the city from loss resulting from injury to property...