Schiltz v. Cullen-Schiltz & Associates, Inc.
| Decision Date | 16 April 1975 |
| Docket Number | No. 55876,CULLEN-SCHILTZ,55876 |
| Citation | 228 N.W.2d 10 |
| Court | Iowa Supreme Court |
| Parties | Dick SCHILTZ d/b/a Key City Constructors a/k/a Dick Schiltz & Sons, Appellee-Cross Appellant, v.& ASSOCIATES, INC., a corporation, Appellant-Cross Appellee and Illinois Central Railroad Company, a corporation, Defendant. |
John D. Randall, Cedar Rapids, for appellant-cross appellee.
Reynolds, Kenline, Breitbach, McCarthy & Clemens, Dubuque, for appellee-cross appellant.
Heard before MOORE, C.J., and MASON, LeGRAND, REES and REYNOLDSON, JJ.
Dick Schiltz, doing business as Key City Constructors, brought a law action against Cullen-Schiltz & Associates, Inc., a consulting engineering firm, and the Illinois Central Railroad Company for damages on the theory the negligence of the engineering firm and the railroad company resulted in damages to a partially finished sewage treatment facility Schiltz was constructing for the town of Elk Run Heights, Iowa. Trial to a jury resulted in a verdict in favor of Schiltz in the amount of $50,000 against the engineering firm and a favorable verdict for the railroad company. The engineering firm appealed from the judgment entered on that verdict and plaintiff cross-appealed asserting the trial court erred in its instructions relative to the measure of damages.
In 1965 the town of Elk Run Heights retained the Cullen engineering firm to perform surveys and studies in order to ultimately design and provide plans for a complete sewage system for the town which previously had no such system. After completing its studies and obtaining approval of its proposals and designs from various governmental agencies the engineering firm submitted its plan to the Elk Run Heights town council in 1969 and they were approved. Plaintiff was the successful bidder and entered into a written contract with Elk Run Heights. In December of that year plaintiff commenced construction of the sewage treatment facility in accordance with the plans and specifications prepared by Cullen.
By June 13, 1970, plaintiff had constructed the entire lagoon (polishing pond), graded and surfaced the access road, completed the excavation for and constructed the aeration tank base and walls and removed 50 percent of the forming materials and bracing from the aeration tank walls.
Sunday, June 14, saw the occurrence of a severe cloud burst, resulting in extensive flooding of nearby Elk Run Creek. Due to this flooding the aeration tanks were somehow floated and damaged so they had to be completely demolished, removed and reconstructed. In addition to reconstruction expenditures plaintiff expended large sums for rental equipment and cleanup operations.
In division 1 of his petition as amended plaintiff alleged negligence of the Cullen engineering firm in one or more of four specified particulars was the proximate cause of the damage to the aeration tanks which had been constructed as a part of the sewage treatment facility. The court submitted only the specification alleging Cullen was negligent in failing to provide in the plans submitted to the town for a dike of sufficient height under the existing circumstances. Division 2 was directed against Illinois Central and division 3 asserted a claim against both Cullen and the railroad.
Defendant in answer admitted identity of the parties and their residence, denied it was negligent in any of the respects specified by plaintiff as the proximate cause of the damage to the aeration tanks. Cullen asserted several affirmative defenses in which it relied on the contract between plaintiff and the town of Elk Run Heights as precluding plaintiff from making claim against Cullen since the engineering firm was the agent of Elk Run Heights and the beneficiary of the contract.
The affirmative defense pertinent here is based on the contention damage to the aeration tanks was proximately caused by plaintiff's negligence in one or more of the following particulars: (a) in failing to properly investigate the site and conditions which would be encountered in the construction project prior to entry into the contract; (b) in failing to comply with the terms and conditions of the contract between the plaintiff himself and the town of Elk Run Heights, as is pleaded by this defendant as an affirmative defense to plaintiff's cause of action; (c) in failing to diligently pursue and promptly complete the construction project; and (d) in failing to inspect and supervise the construction project.
Before trial plaintiff filed application for separate adjudication of law points pursuant to rule 105, Rules of Civil Procedure alleging in substance that: (1) the affirmative defenses contained in various specified paragraphs of division 1 and division 3 of Cullen's separate answer constitute the pleading of contractual defense matters which are not available to Cullen since the contract in question was between plaintiff and the town of Elk Run Heights and does not and was not intended by the parties to benefit Cullen; and (2) the counterclaim filed by Cullen is based on plaintiff's alleged breach of a contract between plaintiff and the town of Elk Run Heights, a contract which does not and was not intended by the parties to benefit said defendant. In an amendment to his application plaintiff asserted similar allegations as to the affirmative defenses contained in divisions 1 and 3 of defendant's second amendment to its answer.
In resistance Cullen contends generally its affirmative defenses were based upon breach of plaintiff's duty under his contract with the town which resulted in damage to Cullen; that the engineering firm was either a party to the contract between plaintiff and the town of Elk Run Heights as engineer and agent for the town or was a beneficiary under the contract and had the right as a matter of law to require plaintiff to show compliance with the terms of that contract. Cullen also contends it was plaintiff's failure to comply with the terms of his contract with the town rather than any negligence on the part of Cullen which caused plaintiff's damage. Cullen further alleged plaintiff's contention was inconsistent with his claim against Cullen since that claim was based upon the contract which existed between Cullen and the town of Elk Run Heights.
The trial court's ruling on plaintiff's application for adjudication of law points determined inter alia, that paragraph 4 of the contract between plaintiff and the town did not run for the benefit of the engineering firm but was a factor that might be considered by the jury in determining certain specifications of Cullen's affirmative defenses relating to plaintiff's contributory negligence. This paragraph of the contract dealt with the obligation of plaintiff as contractor to familiarize himself with the nature of the project and the amount of the materials and the type of equipment needed.
The ruling further provided any breach of contract between plaintiff and Elk Run Heights requiring plaintiff to complete the work within a certain period of time was not available to Cullen as a defense but any delay in construction might under proper evidentiary showing be considered in connection with a specification of defendant's defense of contributory negligence. The ruling further provided Cullen's counterclaim failed to state a good cause of action.
As indicated, before submitting the case to the jury the trial court withdrew all specifications of negligence alleged by plaintiff except the allegation as to Cullen's negligence in failing to provide plans for a dike of sufficient height in view of the possibility of flooding.
Cullen asserts the issues presented for review by its appeal arise from error of the trial court: (1) in refusing to allow defendant to rely on defenses inherent in the contract between plaintiff and town of Elk Run Heights; (2) in overruling defendant's motion to dismiss and for directed verdict since the evidence showed no material defect in the construction plans, defendant exercised due care in preparing the plans, and any error in the plans was not the proximate cause of the damage; and (3) in overruling defendant's motion for directed verdict made at the close of plaintiff's case and renewed at the close of all evidence on the ground plaintiff had failed to generate a jury question as to the measure of damages.
I. The problem presented by defendant's first contention is whether the trial court's ruling sustaining plaintiff's objections to questions propounded by defendant to plaintiff on cross-examination relative to the witness' awareness of the provisions of paragraph 9 of the contract between plaintiff and the town of Elk Run Heights erroneously precluded Cullen from presenting his theory of contributory negligence.
As pointed out plaintiff's cause of action against Cullen is based on the theory the engineering firm was negligent in failing to provide plans for a dike of sufficient height in view of the possibility of flooding; that its negligence in this respect was a proximate cause of the damage to the aeration tanks and plaintiff's losses.
Cullen alleged as a complete defense or bar to plaintiff's recovery plaintiff was negligent in one or more of four specified respects which was a proximate cause of plaintiff's damages. The specifications of negligence relied on by Cullen to establish contributory negligence have been set out earlier in this opinion.
Defendant contends evidence bearing on plaintiff's alleged breach of certain provisions in the contract entered into between plaintiff and the town of Elk Run Heights was relevant and material to the issue presented by Cullen's affirmative defense of contributory negligence.
The provisions relied on dealt with (1) plaintiff's duty to investigate the site of the proposed construction, (2) plaintiff's assumption of all responsibility for any damage from any cause, and (3) plaintiff's duty to keep the site free of all ground water, sewage and...
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