Southwestern Bell Tel. Co. v. J. A. Tobin Const. Co.
| Decision Date | 03 May 1976 |
| Docket Number | No. KCD,KCD |
| Citation | 536 S.W.2d 881 |
| Parties | SOUTHWESTERN BELL TELEPHONE COMPANY, Respondent, v. J. A. TOBIN CONSTRUCTION COMPANY, Appellant. 27088. |
| Court | Missouri Court of Appeals |
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.
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 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 accordance with the Commission's 'Policy on Location of Utility Facilities on State Highways' and other policies of the Missouri State Highway Department. All work will be as directed by the District Engineer.
Section 11. * * * All other underground installations will have a minimum cover of 30 inches, except parallel direct burial underground telephone cable, which may have a minimum of 24 inches of cover. Greater minimums may be required by the District Engineer.
Section 14. Roadway ditches, culverts and other such devices used to carry surface run-off will be kept open, free and clear at all times.' (Emphasis supplied)
Had the available data obtainable from Sheet 41 of the plans been studied, it would have been apparent that the proposed location of Bell's cables at the place where they were cut would be at a vertical level of about the center of the proposed six-foot drainage ditch rather than a minimum of 24 inches below the bottom of the ditch, as required by Section 11 of the Bell permit to relocate its lines, as above set forth. The Bell relocation plan thus clearly conflicted with the highway construction plan and the relocated facilities would not be clear of the construction.
Nevertheless, Bell employed a contractor to accomplish the relocation of its facilities in accordance with the plans prepared by Bell's engineers and this work was completed on June 28, 1968.
On October 28, 1968, Tobin's bulldozer operator, while excavating the drainage ditch west of relocated Route W in accordance with the plans and specifications of the State Highway Commission and in accordance with the slope stakes placed at the site by the state engineers, cut Bell's cable, relocated within the vertical and horizontal area being excavated.
There is no evidence that Tobin had any actual or constructive knowledge of the actual location of the cut cable, but, on the contrary, assumed that Bell had relocated its lines to conform to the new construction.
The court below very properly found upon this evidence that...
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