Southwestern Bell Tel. Co. v. J. A. Tobin Const. Co., No. KCD

CourtMissouri Court of Appeals
Writing for the CourtSWOFFORD
Citation536 S.W.2d 881
Decision Date03 May 1976
Docket NumberNo. KCD
PartiesSOUTHWESTERN BELL TELEPHONE COMPANY, Respondent, v. J. A. TOBIN CONSTRUCTION COMPANY, Appellant. 27088.

Page 881

536 S.W.2d 881
SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent,
v.
J. A. TOBIN CONSTRUCTION COMPANY, Appellant.
No. KCD 27088.
Missouri Court of Appeals, Kansas City District.
May 3, 1976.

Page 882

Gene C. Morris, Rogers, Field, Gentry, Benjamin & Robertson, Kansas City, for appellant.

Robert M. Kroenert, Morrison, Hecker, Curtis, Kuder & Parrish, Jack C. Lorenz, James A. Daugherty, Kansas City, for respondent.

Before SHANGLER, P.J., and SWOFFORD and SOMERVILLE, JJ.

SWOFFORD, Judge.

The respondent (hereafter Bell), in a court-tried case, was awarded a judgment for damages to its underground cable which was severed by a bulldozer operated by appellant (hereafter Tobin) in connection with a highway construction project. Bell's petition was in three counts: 1) action for trespass; 2) violation of a highway construction contract between Tobin and the State Highway Commission under the terms of which Bell claimed to be a third party beneficiary; and 3) a cause of action based upon negligence. The court below found in favor of Tobin on the first and third counts, but in favor of Bell on the second (contract) count, and awarded it damages in the amount of $3,223.95.

Bell did not appeal from the adverse judgment on Counts one and three, but Tobin lodged this appeal of the judgment on Count two. It claims, first, that the court erred in granting a judgment on Count two because its contract with the State did not require it to indemnify Bell against the results of Bell's own negligence. Tobin also assigns error in the granting of the judgment because Bell is estopped from asserting its claim for damages. A resolution of the first point is decisive of this appeal.

The essential and basic facts generated no dispute between the parties, and these facts, as they relate to the theory of contract liability forming the basis of Count two of Bell's cause of action, may be summarized as follows.

Prior to 1965, Bell had transmission facilities located within the right of way on the west side of then U.S. 71 Highway, at or near its intersection with Route W in Platte County, Missouri. These consisted of a cable buried 2 1/2 to 3 feet below the ground surface and overhead lines on poles on the west side of the highway. Bell learned in 1965 that the State Highway Commission planned a modification of existing No. 71 Highway to convert it to Interstate Highway No. 29, which would require the relocation of Route W and therefore a relocation of Bell's transmission lines at No. 71 and Route W.

In the early part of 1968, Bell received from the State Highway Commission copies

Page 883

of the plans for the reconstruction in the area involved, Sheets 39 and 41 of which showed the specific plans affecting Bell's transmission lines at Route W. Sheet 39 indicates a six-foot flat-bottom ditch to be constructed for drainage purposes parallel to relocated Route W, and Sheet 41 shows a continuation of this ditch into the area where Bell's cable was cut by Tobin during the excavation of the drainage ditch. From these sources, Bell's engineers made a plan for the relocation of its facilities intended to conform to and avoid conflict with the proposed changes (which of necessity would include the drainage ditch). Bell decided to remove its overhead lines and to replace them with cable buried at the same horizontal and vertical location as the then existing buried cable, which was approximately 36 inches below natural grade. Bell's plans did not incorporate into or show the continuation of the proposed drainage ditch as shown on Sheet 41, but only the data as shown on Sheet 39, where the drainage ditch ends at a point northeast of where the cable was cut.

Bell's original installation of facilities at this point and the relocation thereof were both done by permission from the State Highway Commission under a written document called 'Excavation Permit', which provides, in part:

'Section 9. All utility facilities will be installed and located and all other work performed in...

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8 practice notes
  • US v. Conservation Chemical Co., No. 82-0983-CV-W-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 27 Junio 1986
    ...York Central Ry. v. Chicago & E.I.R. Co., 360 Mo. 885, 231 S.W.2d 174 (1950); Southwestern Bell Telephone Co. v. J.A. Tobin Const. Co., 536 S.W.2d 881, 885 (Mo.App.1976). The indemnity provision must also be placed in the contract so that the indemnitor has fair notice of its existence, Saf......
  • Parks v. Union Carbide Corp., No. 61468
    • United States
    • Missouri Supreme Court
    • 10 Junio 1980
    ...of indemnity to indemnify against the indemnitee's own negligence. Southwestern Bell Telephone Co. v. J.A. Tobin Construction Co., 536 S.W.2d 881, 885 No such clear and unequivocal terms expressed an intent by Chemlime to indemnify Carbide for its own acts of negligence. Carbide contends th......
  • St. Joseph Light & Power Co. v. Kaw Valley Tunneling, Inc., No. 60862
    • United States
    • United States State Supreme Court of Missouri
    • 14 Noviembre 1979
    ...B is under a contractual duty to C and D." Section 145 was approved by the court in Southwestern Bell Tel. Co. v. J. A. Tobin Const. Co., 536 S.W.2d 881, 884 (Mo.App.1976). Although the court found that the contractor was not liable because Southwestern Bell's own negligence had caused its ......
  • Cooperative Ass'n No. 37 v. St. Louis-San Francisco Ry. Co., LOUIS-SAN
    • United States
    • Court of Appeal of Missouri (US)
    • 3 Diciembre 1979
    ...clear expression or where any doubt exists as to the intention of the parties." Southwestern Bell Tel. Co. v. J. A. Tobin Const. Co., 536 S.W.2d 881, 884-885(2, 3) (Mo.App.1976). There are no clear, unequivocal and unambiguous terms in the agreement which contemplate or cover the casualty i......
  • Request a trial to view additional results
8 cases
  • US v. Conservation Chemical Co., No. 82-0983-CV-W-5.
    • United States
    • United States District Courts. 8th Circuit. Western District of Missouri
    • 27 Junio 1986
    ...York Central Ry. v. Chicago & E.I.R. Co., 360 Mo. 885, 231 S.W.2d 174 (1950); Southwestern Bell Telephone Co. v. J.A. Tobin Const. Co., 536 S.W.2d 881, 885 (Mo.App.1976). The indemnity provision must also be placed in the contract so that the indemnitor has fair notice of its existence, Saf......
  • Parks v. Union Carbide Corp., No. 61468
    • United States
    • Missouri Supreme Court
    • 10 Junio 1980
    ...of indemnity to indemnify against the indemnitee's own negligence. Southwestern Bell Telephone Co. v. J.A. Tobin Construction Co., 536 S.W.2d 881, 885 No such clear and unequivocal terms expressed an intent by Chemlime to indemnify Carbide for its own acts of negligence. Carbide contends th......
  • St. Joseph Light & Power Co. v. Kaw Valley Tunneling, Inc., No. 60862
    • United States
    • United States State Supreme Court of Missouri
    • 14 Noviembre 1979
    ...B is under a contractual duty to C and D." Section 145 was approved by the court in Southwestern Bell Tel. Co. v. J. A. Tobin Const. Co., 536 S.W.2d 881, 884 (Mo.App.1976). Although the court found that the contractor was not liable because Southwestern Bell's own negligence had caused its ......
  • Cooperative Ass'n No. 37 v. St. Louis-San Francisco Ry. Co., LOUIS-SAN
    • United States
    • Court of Appeal of Missouri (US)
    • 3 Diciembre 1979
    ...clear expression or where any doubt exists as to the intention of the parties." Southwestern Bell Tel. Co. v. J. A. Tobin Const. Co., 536 S.W.2d 881, 884-885(2, 3) (Mo.App.1976). There are no clear, unequivocal and unambiguous terms in the agreement which contemplate or cover the casualty i......
  • Request a trial to view additional results

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