Pumphrey v. J. A. Jones Const. Co.

• Decision Date: 10 February 1959
• Docket Number: No. 49642,49642
• Citation: 250 Iowa 559,94 N.W.2d 737
• Parties: L. C. PUMPHREY and Florence L. Pumphrey, Appellees, v. J. A. JONES CONSTRUCTION COMPANY and H. N. Rogers and Sons Company, Appellants.
• Court: Iowa Supreme Court

Page 737

94 N.W.2d 737

250 Iowa 559

L. C. PUMPHREY and Florence L. Pumphrey, Appellees, v. J. A. JONES CONSTRUCTION COMPANY and H. N. Rogers and Sons Company, Appellants.

No. 49642.

Supreme Court of Iowa.

Feb. 10, 1959.

Boyd, Walker & Concannon, Keokuk, for appellants.

McManus & McManus, Keokuk, for appellees.

THOMPSON, Chief Justice.

The important question in this case is whether the defendants, who were doing certain work in connection with the building of a lock in the Mississippi River under contracts with the United States government, are entitled to the same immunity from suit as the government itself. Plaintiffs' petition alleged that in the course of the work the defendants negligently used high explosives in blasting, thereby damaging plaintiffs' property located not far from the site of the construction being carried on. The question of negligence, however, has disappeared from the case, under the doctrine laid down in Watson v. Mississippi River Power Company, 174 Iowa 23, 156 N.W. 188, L.R.A.1916D 101. It was there held that even without negligence one who uses on his own lands something inherently dangerous and likely to damage his neighbor's property is liable for such damage. It is often referred to as the doctrine of 'liability without fault.' We may concede, at least for the purposes of this case, that if the defendants are not entitled to the cloak of immunity from suit which the government has under the same circumstances, which defendants claim in their pleadings, they must respond in damages for the injury to the plaintiffs' property. Although both counts of the plaintiffs' petition rest upon negligence, and the stipulation expressly agrees the defendants were not negligent, the parties have tried the case in the district court and have argued it here upon the theory of 'liability without fault' and we so accept it. The trial court found all issues for the plaintiffs, and entered judgment for the stipulated amount of damages.

The case was tried upon an agreed stipulation of facts. It was there agreed that the defendants were constructing New Lock 19 in the river, pursuant to a contract with the United States government, and that in the course of the work it was necessary to remove earth and rock, by blasting with dynamite. It was further stipulated that the Government was proceeding under authority of the Congress, and that in letting the contract it was performing a governmental function; that is, the improvement of navigation on the Mississippi River; that the defendants were acting as independent contractors, and that they performed as provided in the contract and the plans and specifications thereof, and upon completion the work was accepted by the government as being in compliance with the contract. The method used in blasting was submitted to the Government and approved by it, and became a part of the plans and specifications of the contract, and the work of blasting was performed under the inspection of governmental employes, and there was no deviation from the contract in doing said blasting.

The stipulation further agreed that plaintiffs' dwelling was damaged by the blasting, solely by concussions of the atmosphere and vibrations of the earth, without any negligence on the part of the defendants, and in the amount of $1,600; and that no negligence of the plaintiffs contributed to the injury. Other provisions of the stipulation are not important in our view of the case.

I. The defendants contend that the plaintiffs are not the real parties in interest, because they had made a settlement with an insurance carrier which, defendants think, thereby became entitled to complete subrogation as to their claim. We shall not go into detailed discussion of this question, since we prefer to decide the question upon its substantial mertis concerning immunity, further than to say we think defendants' contention unsound on the point first stated.

II. The question of the extension of governmental immunity to an independent contractor who agrees to do certain work required by the sovereign for its purposes is the important and governing one in the case. Here, the United States wished to build a lock for the purpose of improving navigation in the Mississippi River, an undoubted proper government activity. It chose to do this by contract with the defendants; and in all their activities they were within the terms of the contract, and the work was approved and accepted by the Government upon its completion. They were in no manner negligent. All these things are determined by the stipulation upon which the case was tried.

But the plaintiffs contend that the governmental immunity from suit should not be extended to independent contractors. They urge that the immunity of the sovereign is at best a survival from the days when it was considered that 'the King can do no wrong', and should be strictly limited. They rely much upon the fact that the damage done here was by an inherently dangerous instrumentality, for which the defendants would ordinarily be liable even without negligence. Cases extending the immunity which do not involve the use of such instrumentalities they think are not in point. The proposition in its narrow aspect is new in Iowa, and is an interesting and important one.

III. We may at the outset eliminate the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346, 2671-2680, from consideration. The question is referred to considerably in the arguments, but the ultimate conclusion of both parties seems to be that it is not important here. If the government could be sued under the Act, perhaps the defendants-contractors could also be held to answer. But the Act, as its title indicates, is concerned with torts, and does not extend to cases where the rule of 'liability without fault' is the only basis for recovery. Dalehite v. United States, 346 U.S. 15, 44, 45, 73 S.Ct. 956, 972, 97 L.Ed. 1427; Barroll v. United States, D.C., 135 F.Supp. 441, 447. Since the plaintiffs in effect concede the nonapplicability of the Act in these words in their brief and argument: '* * * there is perhaps no liability on the part of the Government under the Tort Claims Act for the injuries sustained by appellees * * *', we shall not analyze the question further.

IV. Likewise, we may consider it established, at least so far as our decision here is concerned, that if there had been negligence on the part of the defendants they could claim no share in governmental immunity from suit. Many cases have so held. Grennell v. Cass County, 193 Iowa 697, 702, 187 N.W. 504, 506, 507; Thompson Caldwell Construction Company v. Young, 4 Cir., 294 F. 145. An exception to the rule prevails in Kentucky (see Schneider v. Cahill, Ky., 127 S.W. 143, 27 L.R.A.,N.S., 1009, and Ockerman v. Woodward, 165 Ky. 752, 178 S.W. 1100, L.R.A.1916A 1005), where even though the contractor is negligent he is granted the immunity of the governmental body with which he contracts. But the Kentucky cases have been generally disapproved and we have ourselves declined to follow them. Grennell v. Cass County, supra, at page 702 of 193 Iowa, at pages 506, 507 of 187 N.W.

The reason the immunity does not extend to the contractor when he is guilty of negligence is that he is then beyond the terms of his contract. No government has the right to authorize an independent contractor to proceed negligently in carrying out his contract with it, and it will not be presumed that it has done so. Hopkins v. Clemson Agricultural College, 221 U.S. 636, 31 S.Ct. 654, 55 L.Ed. 890. If, in carrying out a lawful contract, he is guilty of negligence he is then not within the procedure he has been authorized to take in his operations, and he can make no claim to immunity. The converse of this proposition will be discussed in the division which follows.

V. The narrow question before us is whether the independent contractor is entitled to share the immunity of the sovereign with which he has contracted if he carries out his operations in accordance with the terms of the agreement and without negligence, even though the procedures required by the contract and approved by the government may result in incidental damage to third person. The plaintiffs think that he is not, because of the use of a dangerous instrumentality--dynamite--which, although authorized by the contract and approved by the government inspectors as a method of operation, resulted in injury to their property which would have been compensable under the rule of liability without fault. In supporting their contention they cite many cases. Many of these are negligence cases which clearly come under the principle discussed in Division II above, and do not aid us here. In this category are Grennell v. Cass County; Thompson Caldwell Construction Company v. Young, both supra, and other cases relied upon to some extent by the plaintiffs. Hopkins v. Clemson Agricultural College, supra, turns upon the holding that the college was not an arm of the state and was doing the work for itself rather than for the government.

State of Alabama v. King & Boozer, 314 U.S. 1, 62 S.Ct. 43, 86 L.Ed. 3, also cited and discussed somewhat, concerns the liability of contractors for state taxes, and we do not consider it in point. Lage v. Pottawattamie County, 232 Iowa 944, 5 N.W.2d 161, was an action against the county itself for damages caused by the county's action in making improvements which caused water to overflow upon plaintiff's property. It holds that property may not be so taken to the public use without just compensation, and has no bearing upon the question of immunity. Questions of eminent domain are involved. So with Great Northern R. Co. v. State of Washington, 102 Wash. 348, 173 P. 40, L.R.A.1918E, 987. Here the state in building a highway caused damage to plaintiff's adjoining railway line. The case holds the state to be liable because of a provision of its constitution which said that 'No property shall be...