Kansas Turnpike Authority v. Watson

Decision Date05 May 1962
Docket NumberNo. 42025,42025
PartiesKANSAS TURNPIKE AUTHORITY, Appellant, v. M. W. WATSON, d/b/a M. W. Watson, General Contractor, Appellee.
CourtKansas Supreme Court

Syllabus by the Court

In an action on a contract by the Kansas Turnpike Authority against an independent contractor who had done blasting work during construction of the turnpike causing damages to a landowner, which damages were recovered by such landowner from the authority under G.S.1957 Supp., 68-2015, and where although the authority had notified the contractor of his liability on the bond, as more fully set forth in the opinion, the contractor refused to comply with the requirement that he defend the turnpike in the damage action, it is held, the trial court erred in entering judgment for the contractor on the grounds of res judicata because of the lack of identity of the cause of action; and further erred in holding the contractor was relieved from the duty of defending the authority as required under the terms of the contract between him and the authority.

Bruce Works, Topeka, and William P. Timmerman, Wichita, and Dale Spiegel, Emporia, on the briefs, for appellant.

Herbert A. Marshall, Topeka, and Allen Meyers, and Doral H. Hawks, Topeka, on the briefs, for appellee.

ROBB, Justice.

This is an appeal by the Kansas Turnpike Authority, plaintiff below, from the orders of the trial court sustaining defendant's demurrer and overruling defendant's objection to plaintiff's evidence, as well as from the judgment in favor of the defendant and the order overruling plaintiff's motion for new trial.

This action commenced by the authority against Watson was based purely upon a contract entered into by the authority and Watson on April 15, 1955 (attached as exhibit 'A') whereby Watson agreed:

'(a) To restore any damaged private property at his own expense; and

'(b) To assume all risk and liability for damage that may occur to property during the prosecution of the work under said contract by reason of negligence and carelessness of himself, his agents or employees; and to assume all direct or indirect damage that may be suffered or claimed on account of any construction or improvement; and

'(c) That payment or acceptance of his work by plaintiff would not be taken as a waiver of plaintiff's right to demand and recover from defendant such damages as may be sustained by reason of defendant's failure to comply with the aforesaid contract and specifications; and

'(d) To carry public liability and property damage insurance to protect the public from damage and injury resulting from his work done under said contract, and to file with plaintiff a certificate of such insurance issued by an insurance company authorized to do business in this state; that such a certificate of insurance was filed pursuant to defendant's contract with plaintiff and a copy of that certificate is attached hereto as Exhibit 'B".

The contract bond provided:

'The Principal ..... shall fully indemnify, compensate and pay the said Kansas Turnpike Authority for any and all loss, cost, damage or expense, which it may suffer, or be held responsible for, by reason of any negligence, defective condition, default, failure or miscarriage in the performance of said contract, whether by said Principal, sub-contractor or otherwise. * * *'

The proposal provided:

'All work to comply with the Standard Specifications for State Road and Bridge Construction, Edition 1955, of the State Highway Commission of Kansas, and all Supplemental Specifications and Special Provisions included herein.'

The standard specifications were:

'7.11 PRESERVATION AND RESTORATION OF PROPERTY, ETC.--The Contractor shall be responsible for the preservation of all public and private property, trees, monuments, etc., along and adjacent to the roadway; shall use every precaution to prevent damage or injury thereto; * * * When or where any direct or indirect damage or injury is done to public or private property by or on account of any act, omission, neglect or misconduct in the execution of the work, or in consequence of the non-execution thereof on the part of the Contractor, such property shall be restored by the Contractor and at the Contractor's expense to a condition similar or equal to that existing before such damage or injury was done, by repairing, rebuilding or otherwise restoring same, or he shall make good such damage or injury in an acceptable manner.'

Finally, the provision covering responsibility for damage claims read:

'7.13. RESPONSIBILITY FOR DAMAGE CLAIMS--The Contractor shall assume all risk and liability for accidents and damages that may occur to persons or property during the prosecution of the work, by reason of negligence or carelessness by himself, his agents or employees, and shall assume also all direct or indirect damage that may be suffered or claimed on account of any such construction or improvement. * * *'

The petition further alleged that an action was filed against the authority in November, 1956, by Carl J. Lynch wherein Lynch claimed certain damages, which petition was also attached as an exhibit to the petition in our present case. The action by Lynch was based on the statutory liability of the authority under G.S.1957 Supp. 68-2015 which in pertinent part provides:

'All private property damaged or destroyed in laying out and constructing said turnpike project shall be restored or repaired and placed in its original condition as nearly as practicable or adequate compensation made therefor out of funds provided under the authority of this act.'

See, also, Pennington v. Kansas Turnpike Authority, 180 Kan. 638, 639, 305 P.2d 849; Anderson Cattle Co. v. Kansas Turnpike Authority, 180 Kan. 719, syl. p4, 308 P.2d 172; Hosterman v. Kansas Turnpike Authority, 183 Kan. 590, syl. p1, 331 P.2d 323.

That action was for damages to Lynch's house and cattle proximately caused by the use of explosives in the construction of the turnpike. Lynch made no mention of Watson in his petition. The authority's answer in that case contained the following statement:

'* * * that if, in truth and in fact, the property of plaintiff as described in plaintiff's petition, was damaged by reason of acts or shocks and explosions caused by the use of dynamite or other explosives in connection with the construction of the Kansas Turnpike at or near said premises, said acts were carried out by, said explosives were used by, and said damage was caused by the independent contractor, M. W. Watson, doing business as M. W. Watson, Contractor, 1004 National Bank Building, Topeka, Kansas, who had the construction contract with the Kansas Turnpike Authority at the time and place alleged in plaintiff's petition and designated as Project No. 6-23-E(1); that in its said contract with the Kansas Turnpike Authority, said contractor agreed to be responsible for any and all such damage as alleged in plaintiff's petition and agreed to protect the public from damage and injury resulting from its construction work.'

The authority moved to make Watson an additional party defendant for the reason that he was a necessary and indispensable party for the complete adjudication of the issues; that he was the real party in interest since he contracted with the authority to protect the public from damage and injury by reason of his construction work and his inclusion would prevent multiplicity of actions.

The court order making Watson a party defendant after stating that the court 'being advised that plaintiff has no objection to said motion' continued in pertinent part:

'* * * that M. W. Watson, doing business as M. W. Watson Contractor, is the real party in interest herein by reason of its having contracted with the Kansas Turnpike Authority to protect the public from damage and injury by reason of its construction work on the Kansas Turnpike; that M. W. Watson, doing business as M. W. Watson Contractor should be made an additional party defendant herein in order to prevent the multiplicity of legal actions.'

Watson demurred to 'plaintiff's Petition herein on the ground that the pleadings herein do not state a cause of action' against him and in favor of Lynch. (Our emphasis.) This demurrer was sustained by the trial court on May 29, 1958, and no appeal was taken therefrom. At the end of the hearing of all the evidence, Lynch was awarded $300.00 damages to his house, $2,700.00 damages to his cattle, and the trial court made the following conclusion of law:

'Such damages having been caused solely and proximately by the negligence and carelessness of M. W. Watson, doing business as M. W. Watson Contractor, an independent contractor of the Kansas Turnpike Authority in connection with the construction of the Kansas Turnpike, the defendant, Kansas Turnpike Authority is liable to plaintiff herein by reason of the statutory liability imposed by Section 68-2015, G.S.1957 Supplement.'

Certain letters were attached to the authority's petition in our present case which, in brief, conveyed the following information:

Exhibit C dated April 4, 1958, was written to Watson by the authority's counsel and notified Watson of Lynch's suit for damages against the authority. Carbon copy was sent to Watson's insurance...

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3 cases
  • Mid-Continent Casualty Company v. Everett
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • January 12, 1965
    ...Court of Kansas has said, there must be, among other things, identity of persons and of parties to the actions. Kansas Turnpike Authority v. Watson, 189 Kan. 593, 371 P.2d 119; McDonald v. Joint Rural High School District No. 9, 180 Kan. 563, 306 P.2d 175; Kenoyer v. Board of Barber Examine......
  • Dennis v. Southeastern Kansas Gas Co., Inc.
    • United States
    • Kansas Supreme Court
    • May 10, 1980
    ...50 C.J.S. Judgments § 811a, p. 361. These basic principles of law have been recognized and applied in Kansas in Kansas Turnpike Authority v. Watson, 189 Kan. 593, 599, 371 P.2d 119 (1962); City of McPherson v. Stucker, 129 Kan. 262, 266, 282 P. 703 (1929); and City of Fort Scott v. Penn Lub......
  • Miller v. Kansas Turnpike Authority
    • United States
    • Kansas Supreme Court
    • May 9, 1964
    ... ...         We were thereafter called upon again to determine the sufficiency [193 Kan. 21] of a petition under attack by general demurrer in Kansas Turnpike Authority v. Watson, 189 Kan. 593, 596, 598, 371 P.2d 119. In an earlier action brought by Carl J. Lynch against the Authority for damage to his house and cattle alleged to have been caused by the negligent blasting of M. W. Watson, a general contractor, in construction of the turnpike, the Authority settled the ... ...

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