PENN BRIDGE CO. v. CITY OF NEW ORLEANS et al., 222 F. 737

WALKER, Circuit Judge. Omitting mention of details not necessary to be considered in reviewing the ruling of the trial court which is assigned as error, the petition alleged, and there was evidence tending to prove, the following facts: The plaintiff in error contracted with the defendant in error the city of New Orleans to build for it a bridge of the bascule or lift type, strictly in accordance with plans and specifications furnished to the city by bridge architects employed by it alone.

After the plaintiff in error had, in pursuance of the terms of the contract and under the supervision of the city engineer, carried the work to a point nearing the completion thereof, the bridge collapsed and fell while it was being lowered from a vertical to a horizontal position upon the request and order of the official of the city who had the supervision for it of the construction work.

This collapse of the bridge was not due to any fault or omission of the plaintiff in error, its agents, servants, or employés, nor to any defective material used therein, nor to any nonobservance by it of any requirement'of the contract, but was due altogether to the plans and specifications, which, as above stated, the contract required the builder strictly to observe and follow, being fundamentally defective and insufficient. That contract contained the following provisions: “14.

Damage to Bridge. — The contractor shall he responsible for all damages the bridge might suffer from fire, storm, or whatsoever cause during erection or after completion until accepted by the city engineer and the commissioner of public works. * * * “20.

Maintenance. — The contractor guarantees, at his expense, to maintain to the satisfaction of the commissioner of public works, in good condition, for a period of one (1) year from the day it is accepted by the city engineer, all of the work executed under- the contract.” During the progress of the work, before the collapse of the bridge, payments had been made thereon as provided for in the contract; but the proportion of the work contracted for which had then been done was considerably greater than- that which the amount that had been paid thereon bore to the contract price.

After the collapse of the bridge the city procured new and revised plans and specifications for its erection, and it was completed under a new contract entered into between the city and the plaintiff in error, which provided for the. payment of a specified sum for the work called for by that contract.

It was expressly stipulated in that contract that the making of it was “without prejudice, waiver, or admission of liability by or 011 behalf of any party hereto, either to each other or to third persons, each denying that it is liable either to the other, or to third persons, for the collapse of said bridge, or for any damage, injury, loss, or liability flowing therefrom.” There was evidence tending to prove, that an unpaid balance was due under this second contract. At the close of the evidence the counsel for the defendants moved the court orally to instruct the jury to find a verdict for the defendants.

Thereupon the presiding judge made some remarks to the jury as to his views of the rules of law applicable to the case, which he concluded with this statement: ‘'However, there is due the plaintiff an amount of §2,551.93 for matters arising after the failure of the bridge, and I will direct a verdict for that amount.” Immediately following its recital of this statement, the bill of exceptions states: “And thereupon, and before the said jury retired, immediately after said charge, counsel for the plaintiff then and there, in the presence of the jury, excepted and reserved this its bill of exceptions, which was then and there noted.” The counsel for the defendants in error suggest that the exception which was reserved was insufficient to present for review any action ol’ the trial court, in that it failed to direct the attention of the court to any particular ruling sought to be made the subject of objection.

There is no merit in this suggestion. Manifestly the exception reserved was directed, not to what the court said in explanation of the ruling it was about to make, but to the action of the court in so disposing of the motion submitted as to deny the plaintiff’s right to recover anything for work done under the original contract. The exception sufficiently directed the attention of the court to the ruling made on the motion for a directed verdict, and it duly presents that ruling for review. E. H. Rollins & Sons v. Board of Commissioners, 80 Fed. 692, 26 C. C. A. 91.

The effect of the court’s ruling was to deny the plaintiff in the case any right to recover for work done under the original contract, though its failure to' complete the work called for by that contract was due, not to any fault on its part, but to a collapse of the bridge because the plans and specifications for it, to which the plaintiff had to conform, were fundamentally wrong, and though neither the agreed price for building the bridge nor so much of that price as was proportionate with the part of the work which had been done at the time of the collapse had been paid.

This amounted to holding that any loss resulting from the collapse of a structure while in course of erection must fall on the party who undertook the work of construetion, though the collapse was due, not at all to his fault or omission, ■but wholly to the fatal insufficiency of plans and specifications for which he was in no way responsible and from which he was not permitted to deviate. The remarks made by the presiding judge in explanation of the ruling he was about to make show that he regarded the provision contained in

article 2758 of the Civil Code of Louisiana as determinative of the question presented for decision. That provision is as follows: “Art. 2758. Accidental Destruction Before Delivery. — When the undertaker furnishes the materials for the work, if the work be destroyed, in whatever manner it may happen, previous to its being delivered to the owner, the loss shall be sustained by the undertaker, unless the proprietor be in default for not receiving it, though duly notified to do so.” This

article provides when the loss resulting from the destruction of a work before it has been completed and delivered is to fall on the undertaker or builder. ' Another

article of the same Code (article 2762) provides when the loss due to a building falling to ruin after its completion and delivery is to fall upon the builder. It is to be noted that neither of these provisions contains language which makes it plain that it was a part of the legislative purpose to subject the builder to the loss occasioned by a destruction of the work, due to a cause for which he was not responsible and of which the owner alone had control. In the framing of each of these articles use was made of provisions on the same subjects contained in the Code Napoléon (articles 1788, 1792).

They were redrafted and somewhat changed in phraseology before being incorporated in the Louisiana Civil Code. It is not without significance that a change made in the redrafting of the last-mentioned

article consisted in its omission of a clause found in the corresponding

article of the Code Napoléon — one making the contractor responsible for the loss resulting from the fall or collapse of a building as a result of a defect in its foundation — the effect of which would have been to make the builder bear a loss due to a cause for which he may not have been at all responsible, and for which the owner may have been solely responsible. The difference between the last-mentioned provision and the corresponding one of the. Code Napoléon has been noted in Louisiana decisions. Fremont v. Harris, 9 Rob. (La.) 23; Powell v. Markham, 18 La. Ann. 581.

To say the least, the history of the enactment of that provision, which is cognate with the one which is claimed to have a bearing upon the decision of the instant case, contains some evidence of a lack of intention on the part of the Legislature to cast upon a builder the loss consequent upon the destruction of his work due to a cause for which he was in no way responsible, and for which the owner was solely responsible.

But, without regard to this consideration, we do not think that with any plausibility it can be contended that the Legislature, in using the • words, “if the work be'destroyed, in whatever manner it may happen, previous to its being delivered to the owner,” had in contemplation a destruction of the work due to the owner’s fault while it is still incomplete in the hands of the contractor.

It seems to be more reasonable to infer that in such a use oí the words quoted in the connection in which they are found there was a tacit assumption that a destruction oí the work would not be attributable to the owner when it occurred before there had been a delivery to him. In stating the builder’s responsibility for the structure before its delivery to the owner, it is not to be supposed, in the absence of a .clear manifestation of a purpose in that regard, that the Legislature had in mind an injury caused by the owner himself, or intended to charge the builder with liability therefor.

Even in the case of the common-law liability of a common carrier, generally stated as extending to any loss or injury not due to

an act of God or the public enemy, the responsibility of the carrier for damage to the thing carried caused by the shipper himself is impliedly excluded. The provision relied on evidences an intention of the Legislature to go SO’ far as to cast upon the builder a loss occasioned by a destruction of the work before delivery, though such destruction was without fault on his part, or is unexplained, but by no means evidences a purpose to cast upon one party to a building contract a loss for which the other party to that contract is solely responsible.

More definite language than that found in the provision in question would be required to warrant the imputation to the Legislature of such a purpose. We do not think that it would be more permissible to give to che provision in question the meaning which is sought to be attributed to it than it would be to construe

section 14 of the contract, above set out, as having the effect of enabling the city willfully to cause the destruction of the bridge before its completion, and then hold the contractor responsible for the damages so sustained. While there has not come to our notice any decision of a Louisiana court specifically to the effect that the

article of the Civil Code which is invoked does not make a contractor liable for a failure of his work due to the badness of the plan made for it by another, and which the contractor was required to follow, decisions which have been rendered to the effect that a builder is not responsible for results attributable to defects in the architect’s plans (Hebert v. Weil, 115 La. 424, 39 South. 389; Mahoney & Co. v. St. Paul’s Church, 47 La. Ann. 1064, 17 South. 484) indicate that the opinion has not heretofore been entertained that the statute in question has the meaning now imputed to it.

And we are not of opinion that it has that meaning. We have been referred to a decision of the French Court of Cassation as giving the meaning contended for by the counsel for t-he defendants in error to the

article of the Code Napoléon corresponding with

article 2758 of the Louisiana Civil Code. Such rulings on questions of the

interpretation of Code provisions are not to be followed when found to be inconsistent with the jurisprudence of Louisiana, as evidenced by the decisions of its own courts, as, in view of the two rulings last above cited, the one relied on seems to be. Hubgh v. New Orleans & Carrollton R. Co., 6 La. Ann. 495, 510. At any rate, that decision of the French court is not authoritative in this jurisdiction, and we think that the considerations stated above are such as to require the conclusion we have reached on the question presented.

The inquiry, then, is as to the rule to be applied in the absence of, a governing statute. .The transaction disclosed is the familiar one of a contractor undertaking to furnish the material and work called for in a contemplated structure required to be erected in conformity with plans and specifications supplied by the owner or his architect; no more being expected of the contractor than that he follow such plans and specifications, without critical investigation of their sufficiency.

Such a contractor loses any right to recover on the contract by a performance not in substantial conformity with the requirements of it. If, because of the badness of the plan, the contemplated structure cannot be brought to successful completion in the way required to be pursued, and nevertheless the contractor can be entitled to nothing unless he follows the plan prescribed, the contract has the effect of placing him in a dilemma from which there is no chance for him to escape without loss, though this situation is brought about by requirements imposed by the other party to the contract.

It cannot be supposed that such contracts would be matters of such common occurrence — that owners would be able to secure them, or that contractors could be found who would be willing to subject themselves to such risks of loss due to no fault on their part — if it was understood by the parties that the making of such contracts involved such results; and there is abundant authority for the assertion that such transactions do not have such consequences.

We understand it to be well s'ettled that by the making of such a contract as the one involved in this case the owner impliedly warrants the sufficiency for the purpose in view of the plans and specifications which the contractor is required to follow, and subjects himself to liability to the contractor for loss or damage entailed upon the latter in consequence of a fatal deficiency or fault in the plans or specifications not discoverable by him by the exercise of ordinary diligence "upon inspection. Bentley and Others v. State, 73 Wis. 416, 41 N. W. 338; MacKnight Flintic Stone Co. v. Mayor, 160 N. Y. 72, 54 N.

E. 661; Murphy v. National Bank, 184 Pa. 208, 39 Atl. 143; Filbert et al. v. Philadelphia, 181 Pa. 530, 37 Atl. 530; Continental & C. T. & S. Bank v. Corey Bros. Const. Co., 208 Fed. 976, 126 C. C. A. 64; Bush v. Jones, 144 Fed. 942, 75 C. C. A. 582, 6 L. R. A. (N. S.) 774; Sickels v. United States, 1 Ct. Cl. 214; 6 Cyc. 63.

A contractor’s right to recover for material and labor furnished under such a contract as the one involved in this suit is not to be denied when he shows a performance of all that he undertook to do, except in so far as performance was rendered impossible by a fatal fault of the plan he was required to follow, the responsibility for which fault and for the failure to discover it in time to avoid the consequent loss to the contractor was solely that of the owner or his architect or supervisor. The conclusion is that the court was in error in making the ruling complained of.

It follows that the judgment should be reversed, and the cause be remanded for a new trial; and it is so ordered.