Kansas City Power & Light Co. v. Federal Const. Corp., 48576

• Decision Date: 13 November 1961
• Docket Number: No. 48576,No. 2,48576,2
• Citation: Kansas City Power & Light Co. v. Federal Const. Corp., 351 S.W.2d 741 (Mo. 1961)
• Parties: KANSAS CITY POWER & LIGHT COMPANY, a Corporation, Respondent, v. FEDERAL CONSTRUCTION CORPORATION, a Corporation, Appellant
• Court: Missouri Supreme Court

Page 741

351 S.W.2d 741

KANSAS CITY POWER & LIGHT COMPANY, a Corporation, Respondent, v.FEDERAL CONSTRUCTION CORPORATION, a Corporation, Appellant.

No. 48576.

Supreme Court of Missouri, Division No. 2.

Nov. 13, 1961.

Motion for Modification of Opinion and Order Denied Dec. 11, 1961.

Robert S. McKenzie, McKenzie, Williams, Merrick, Beamer & Stubbs, Kansas City, for appellant.

Joseph J. Kelly, Jr., William H. Woodson, Donald W. Giffin, Spencer, Fane, Britt & Browne, Kansas City, for respondent.

EAGER, Presiding Judge.

RespondentKansas City Power & Light Company sued appellantFederal Construction Corporation, its contractor on certain work, for indemnity under a written contract.Respondent had previously settled personal injury suits filed against it by two employees of the contractor.It recovered $25,083.82 in the trial court and this appeal followed.We shall refer to respondent as plaintiff and to appellant as defendant.

A 'General Contract Proposal' dated August 27, 1954, had been executed by the parties, covering the construction of distribution and transmission lines by defendant; thereafter, and subject to the general contract, a 'Job Proposal' was executed and accepted on July 11, 1955, providing for the 'Reconductoring' of a certain high voltage line between plaintiff's Hawthorne Plant and the junction of Highway 24 and Manchester Avenue in Jackson County.Specifically, this work consisted of replacing the magnetic suspension clamps with nonmagnetic clamps to procure greater efficiency; the clamps fixed the wires to the insulators.This line consisted of three wires suspended on nineteen sets of dual poles; the wires were suspended below crossarms on each set of poles and were clamped to the bottoms of rather long insulators extending downward from the crossarms to the wires.From a stipulation of facts filed, the following appears: when the work began plaintiff de-energized the line by disconnecting the three 'jumper wires' or leads at a steel tower inside the plant area where the line was normally energized; at that time it connected these three jumper wires with lugs, screws and clamps to the legs of the tower structure, where they would receive no current.At the time of the injuries in question, on November 1, 1955, two of defendant's linemen, Bill Harber and Robert Spurlin, were working on the last of the pole structures, the one just outside the Hawthorne generating plant; this was on land owned by plaintiff.At that time they had pulled the center wire somewhat up and to the north with a block and tackle so that they could reach the clamp as they stood on the pole with their spikes, supported by their belts.The same procedure had been followed on all other eighteen structures.While they were thus changing the clamp, the end of the 'jumper'(a short wire leading downward from the main wire to pick up the current from a 'bus bar') on the center wire broke loose from its previously fixed position on the steel tower, swung free and downward, and twice contracted the energized 'bus bar' as it swung.This sent the high voltage current for short periods through the wire on which the men were working, severely injuring them.They were paid workmen's compensation benefits by defendant's insurer and their medical expenses were also paid by it.When plaintiff was sued by these men, it tendered the defense to defendant, but the latter declined to assume it.The amount which plaintiff should recover in the present action, if anything, was stipulated.The payments made by plaintiff in settlement of the suits included payments to defendant's workmen's compensation insurer as subrogee.

We are concerned only with the indemnity and insurance features of the contract between the parties.At the expense of brevity we must quote the indemnity provisions in full: 'Responsibility for all risks shall be assumed by the Contractor, and he will be held liable for the safety of the work to be performed by him.He shall be held responsible and shall make good without delay any damage arising from accidents, negligence, or carelessness pertaining to the work and every part thereof, and for all materials, tools, appliances, and property of every description used in connection therewith.Every precaution will be used by the Contractor to protect the workmen and others about the premises and the public on the streets, highways, or rights-of-way, and he shall indemnify and save harmless the Company and its representatives, successors, and assigns from all suits or actions of every nature or description for, or on account of, damage or injuries received or sustained by any party or parties by or from the Contractor, his agents, or servants in the performance of the work.'(Frompage 7 of the contract.)

'The Contractor shall indemnify, defend and save the Company harmless from all loss, cost, expense, damage, judgment or other obligations resulting from or arising out of the acts or omissions of the Contractor, or any sub-contractor, their respective servants, agents, and employees, resulting in injury to, or a claim of injury to, the person or property (1) of the Contractor's employees and (2) of all other persons.The performance of this indemnification will be assured by the Contractor taking out, paying the premium on, and, at all times during the life of the Contract, keeping in force adequate policies of liability insurance with minimum coverage as follows:' (The foregoing is from page 8 of the contract; here followed a description of several types of insurance which will be referred to presently.)

'Responsibility of Contractor to Private Property Owners.In connection with construction of the distribution or transmission line, the Contractor shall, whenever practicable, use existing roads or lanes to travel upon privately-owned property, and shall, as far as reasonably possible, stay upon those parts of privately-owned land in which the Company will have acquired rights of entry or other rights.In those cases where the Contractor finds it necessary to enter upon, travel across, or otherwise use privatelyowned land outside of the rights on such land acquired by the Company, the Contractor shall make all necessary arrangements with the landowners involved for such rights of entry and use of their property.The Contractor shall be responsible and liable to landowners and other claimants for, and shall hold and save harmless the Company from, any and all actual or alleged damages, injuries, costs, expenses, suits, causes of action or claims, whether relating to persons or property or both, arising out of or as a consequence of the construction of the distribution or transmission line.This shall include, without limiting the generality of the foregoing, any and all claimed damage to any of the following: standing or growing crops, fields, pastures, roads or other land because of ruts or holes created in the process of construction; tears, snags, or other damage to fences or gates; injury to existing buildings, walls, springs, or other improvements from blasting operations during construction; loss of or injury to livestock from any act connected with such construction; including losses caused by failure to replace or restore fences or failure to close gates; loss of or injury to personal property in place on land; interference with the normal flow of springs, wells or creeks or the normal drainage of surface water because of grading, digging, blasting, or other operations connected with the construction; injury to persons from blasting operations; interference (other than inductive interference) or damage to any telephone or telegraph line or cable, power line or cable or gas or oil pipe lines; or other acts connected with such construction.'(Frompage 20 of the contract.)

The insurance so required was (omitting automobile coverage): 'Workmen's Compensation; Public Liability, extending coverage to include the interests of Kansas City Power & Light Company; Property Damage, extending coverage to include the interests of Kansas City Power & Light Company; Contingent Public Liability, if Contractor employs any sub-contractors, extending coverage to include the interests of Kansas City Power & Light Company; Contingent Property Damage, if Contractor employs any sub-contractors, extending coverage to include the interests of Kansas City Power & Light Company; Contractual Liability; Contractual Property Damage.'Stated limits of the various coverages were included.

The case was tried to the court without a jury upon the stipulation of facts and a supplemental stipulation.The latter was prompted by a suggestion of the court that it would like to examine the insurance policies.Copies of three policies were attached,--with many endorsements.We shall disregard one as it covers merely automobile liability.Of the other two, one was Michigan Mutual Liability Company's 'Comprehensive General Liability' PolicyNo. 18-3171, issued to defendant; one of its primary coverages was 'To pay * * * all sums which the insured shall become legally obligated to pay as damages because of bodily injury * * * sustained by any person and caused by accident.'Liability assumed under any contract was generally excluded, except as defined therein, but the policy bore an endorsement making it applicable to the 'legal liability of others assumed by the named insured' under the Kansas City Power & Light Company construction contract; and, except with respect to the stated assumed liability, the policy expressly excluded liability for injury to any employee of the insured while engaged in its employment.There is no reference in that policy to 'Extended Coverage' as such.

PolicyNo. 16-101363 of the same insurer was entitled 'Workmen's Compensation and Employer's Liability Policy.'In addition to the workmen's compensation coverage it provided coverage of insured for injury to any employee arising 'out of and in the course of his...