Oman Const. Co. v. Tennessee Cent. Ry. Co.

• Decision Date: 11 September 1963
• Citation: 370 S.W.2d 563,16 McCanless 556,212 Tenn. 556
• Parties: OMAN CONSTRUCTION COMPANY, Inc., McKenzie Construction Company, and Bertrand Goldberg Associates, Petitioners, v. TENNESSEE CENTRAL RAILWAY COMPANY, Respondent. 16 McCanless 556, 212 Tenn. 556, 370 S.W.2d 563
• Court: Tennessee Supreme Court

Page 563

370 S.W.2d 563

OMAN CONSTRUCTION COMPANY, Inc., McKenzie Construction Company, and Bertrand Goldberg Associates Petitioners, v. TENNESSEE CENTRAL RAILWAY COMPANY, Respondent.

16 McCanless 556, 212 Tenn. 556, 370 S.W.2d 563

Supreme Court of Tennessee.

Sept. 11, 1963.

Goodpasture, Carpenter, Woods & Courtney, Nashville, for Oman Const. Co., Inc., and McKenzie Const. Co.

Stephenson, Lackey & Holman, Nashville, for Bertrand Goldberg Associates.

Joseph Martin, Jr., John D. Whalley and Carmack Cochran, Nashville, Martin & Cochran, Nashville, of counsel, for respondent.

HOLMES, Justice.

This suit was instituted by the Tennessee Central Railway Company against the Oman Construction Company, Inc., McKenzie Construction Company and Bertrand Goldberg Associates to recover damages alleged to have been sustained by plaintiff as a result of the tunneling of a sewer under its freight depot in Nashville and blasting done in connection with the construction of such sewer. In the Circuit Court there was a judgment for the plaintiff for $30,000.00 against all of the defendants. The case was appealed to the Court of Appeals where a majority of that Court affirmed the Circuit Court judgment. This Court has granted writs of certiorari prayed for by all of the defendants and has set the case for oral argument, which has been had. For convenience, hereinafter we shall refer to the defendant Oman Construction Company, Inc., as 'Oman', the defendant McKenzie Construction Company as 'McKenzie' and the defendant Bertrand Goldberg Associates as 'Goldberg'.

The plaintiff's declaration is in three counts. The first count is based on an alleged breach of contract by the defendants. The second and third counts sound in tort. The first count of plaintiff's declaration alleges that on August 18, 1952 Goldberg, a firm of architects-engineers, and another similar firm entered into a contract with the City of Nashville by which Goldberg and the other firm were employed by the City as engineers in connection with the construction of a sewage collection and disposal system for the City. Under the terms of this contract Goldberg and the other firm were employed to review and report on an existing design for such sewage system and to supervise and inspect the proposed construction work. This count of the declaration further alleges that on June 29, 1953 the contract of August 18, 1952 was amended so as to separate the work of Goldberg from that of the other firm. By this amendment Goldberg alone became the supervising engineer for the proposed sewer construction. It is alleged that, as supervising engineer under the terms of its contract with the City, Goldberg agreed as follows:

'I. The Engineers will establish a suitable Engineer-Management office in the City of Nashville and will employ and install therein a competent resident engineer and a staff of assistant engineers, survey personnel, inspectors, and such other personnel as may be necessary, who will supervise and inspect the proposed construction work as the direct representative of the Engineers. Said resident engineer and the personnel under his direction, will devote full time and energies solely to the prosecution of the construction work until the same has been completed and accepted by the City.

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'V. Following award of construction contracts by the City, the Engineers will supervise all construction work thereunder.

'(a) Supervision of construction will consist of the following:

'(1) The inspection of all work in progress to insure its compliance with provisions of the construction contracts, including periodic visits to the site of the work to see that detailed inspection is adequate, that construction is according to plans and specifications, and that progress is satisfactory and according to schedule.

'(2) The preparation of any additional detail drawings that may be found necessary for proper construction or to cover any changes that may be encountered in field conditions.

'(3) The checking of all lines and grades as the work proceeds.'

This count of the declaration further alleges that on May 20, 1954 the City and the plaintiff entered into an agreement by which plaintiff granted unto the City, 'its servants, agents and/or contractors permission to enter upon the property of plaintiff for the purpose of constructing an 84-inch pipe tunnel sewer across the plaintiff's station grounds and under the station and office building and tracks of plaintiff.' This quoted language from the declaration is the conclusion of the pleader as to the terms of the contract between the plaintiff and the City, which contract, has hereinafter stated, was made a part of the record in the cause. The contract itself, after describing the size and location of the sewer across plaintiff's property and providing that the top of said sewer shall not be less than 13 feet below the surface states:

'TENNESSEE CENTRAL RAILWAY COMPANY hereby grant and give the required easement to the City of Nashville, its servants, agents and/or contractors to construct, operate and maintain said sewer across its lands along the routes above described.

* * *

'All expenses in connection with the construction of said sewer, or damage to facilities of the Railway as a consequence of said construction or operation is to be borne by the City of Nashville, its servants, agents and/or contractors.

* * * 'It is not intended by this instrument to give the City of Nashville any interest in or titles to the lands of Tennessee Central Railway, but the easement herein is given only for the construction, operation and maintenance of said sewers.'

It is further alleged in this count that on June 29, 1954 the City entered into a contract with Oman for the construction of the sewer. This contract, among other things, provided:

'CONTROL OF WORK AND MATERIALS

'1. Authority of the Engineer:

'All work shall be done under the supervision of the Engineer and to his satisfaction; he shall decide all questions which arise as to quality and acceptability of materials furnished, work performed, manner of performance, rate of progress of the work, sequence of construction, interpretation of plans and specifications, acceptable fulfillment of the contract, compensation and suspension of work; he shall determine the amount and quality of work performed and materials furnished; subject in each case, however, to the final determination of the City.

'The contractor may request and shall receive written instructions from the Engineer upon any important items.'

P. 13

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'LEGAL RELATIONS AND RESPONSIBILITY TO PUBLIC

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'9. Protection and Restoration of Property:

'The Contractor shall not enter upon private property for any purpose without first obtaining permission of the property owner and the Director of Public Works, by application through the Engineer, and he shall be responsible for the preservation of and shall use every precaution necessary to prevent damage to all trees, shrubbery, fences, culverts, bridges, pavement, driveways, sidewalks, etc.; to all water, sewer, gas, telephone and electric lines thereof, and to all other public or private property along or adjacent to the work. The Contractor shall notify the proper representatives of any public service corporation, any company or any individual not less than twenty-four (24) hours in advance of any work which might damage or interfere with the operation of their or his property, along or adjacent to the work. He shall be responsible for all damage or injury to property of any character resulting from any act, omission, neglect or misconduct in the manner or method of executing the work or due to his non-execution of the work or at any time due to defective work or materials, and said responsibility shall not be released until the work shall have been completed and accepted.

'When and where any direct or indirect damages or injury is done to public or private property 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, he shall restore, at his expense, such property to a condition similar or equal to that existing before such damage or injury was done by repairing, rebuilding or otherwise restoring as may be directed, or he shall make good such damage or injury in an acceptable manner.'

P. 19

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'PROSECUTION AND PROGRESS

'1. Sub-Letting of Work:

'If the Contractor sublets the whole or any part of the work to be done under this contract, he will not, under any circumstances be relieved of his responsibility and obligation hereinbefore set out. All transactions of the City and/or Engineer shall be with the Contractor. Sub-contractors will be considered only in the capacity of employees or workmen and shall be subject to the same requirements as to character and competency.'

P. 22

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'CONTRACT

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'Article VIII. The blasting of rock in the progress of the work shall be at the risk of the Contractor_____, and all damages occasioned thereby, or any injury done by the Contractor_____, or any of his employees, to persons or to personal or real property, also all damages that may be occasioned to omission on the part of the said Contractor_____ or his employees, resulting from the carrying out of said work, shall be paid by the Contractor_____ and the City of Nashville shall be saved wholly harmless therefrom by the Contractor_____ and in the event of a joint judgment by any court against said Contractor_____ and the City of Nashville, or in the event of a joint liability with or without suit, it is expressly agreed that said Contractor_____ shall not claim or set up, or plead as a defense that ___he___ and the bond covering this work are not liable.'

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'TECHNICAL PROVISIONS

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'7. Sheeting, Shoring and Bracing

'(b) Where excavations are made adjacent to existing buildings or other structures or in paved streets, alleys or other...