General Heating Engineering Company, Inc. v. District of Columbia

301 F.2d 549

• Court: Court of Appeals for the D.C. Circuit
• Decided: May 14, 1962
• Docket: 16325_1
• Status: Published

Opinions

BAZELON, Circuit Judge.

Mr. and Mrs. Boorstein, plaintiffs in an earlier action in the Municipal Court, sued all but one of the parties¹ to this appeal for damages sustained when their car fell into a street excavation. The excavation had been dug and backfilled by our present appellants [hereinafter referred to as contractors] in connection with their construction activities and pursuant to a permit issued by the District of Columbia. In that earlier action, the court directed a verdict in favor of the contractors but allowed the jury to find the District liable to the injured Boorsteins. The District .did not appeal but paid the judgments and then brought the present suit in the Municipal Court against the contractors for indemnification. On the ground that the earlier judgment was conclusive upon the issues in this suit,² the court directed a verdict for the contractors at the close of the District’s case.

The Municipal Court of Appeals reversed. It held that the contractors’ application for an excavation permit contained an indemnity provision, set out in the margin below,³ which was “so broad * * * that although it contains no express stipulation indemnifying against a party’s own negligence, it accomplished the same purpose.”

We agree that the District is entitled to indemnity in this case. In reaching this conclusion, however, we find it unnecessary to decide whether the “broad” indemnity clause in the permit application generally entitles the District to indemnification despite any negligence on its part and despite the contractors’ freedom from negligence.⁴ For our only concern here is with the specific negligence of the District’s ten-day delay in resurfacing.

One of the provisions of the permit application imposes an obligation upon the contractors “to insure that such excavation is kept in a safe condition until such street * * * had been repaired or resurfaced by the District of Columbia.”⁵ That provision demonstrates that the parties anticipated a delay between the contractors’ backfilling and the District’s resurfacing, and that the delay would endanger the public unless someone was responsible for keeping the cut safe. The permit application, as construed by the Municipal Court of Appeals, places that duty upon the contractors for a reasonable period. In the earlier suit the District’s delay in resurfacing was held a breach of its duty to the general public (i. e., negligence). It seems clear to us, however, that this could not determine the scope of the contractors’ duty to the District under the cited provision of the permit application.⁶ The District did not cross-claim against the contractors in the earlier action. Hence the scope of' their duty to the District was not before the court.

We agree with the Municipal Court of Appeals that the permit application must be construed to require the contractors to keep the cut safe only for a reasonable time, and that the ten-day period involved here was reasonable as between these parties. We therefore conclude that appellants’ failure to discharge that duty makes them liable to the District under the provision of the application which prescribes indemnification “for all * * judgments * * * resulting from failure to observe and comply with terms and conditions of this application.”

Affirmed.

1 . Appellant Bradley, who signed the permit application discussed below on behalf of General Heating, was not a party to the earlier action.

2 . It is not entirely dear from the record before us just what was established between the parties to this suit by the earlier judgment. But the Municipal Court of Appeals held in the present suit that, as against the injured persons, the first proceeding established the District’s negligence and the contractors’ freedom from negligence. Since the parties have not objected to the holding, we have assumed its validity for purposes of • this appeal. See Hecht Co. v. District of Columbia, 139 A.2d 857 (D.C.Mun.Ct.App.1958); Central Surety & Ins. Corp. v. Mississippi Export R. Co., 91 F.2d 125 (5th Cir. 1937); A.B.C. Fireproof Warehouse Co. v. Atchison, T. & S. F. R., 122 F.2d 657 (8th Cir. 1941) ; Restatement, Judgments § 106 (1942). But see Lowery v. Muse, 151 A.2d 263 (D.C.Mun.Ct.App.1959).

3 . The application provides “that the applicant will save harmless, indemnify, and keep indemnified the District of Columbia, its officers and employees, from all claims, suits, charges, counsel fees, and judgments to which the said District, its officers and employees may be subject on account of injury to persons or damage to property, including property of the District of Columbia, due to negligence of the applicant, or occasioned by work not authorized by said permit or resulting from failure to observe and comply with terms and conditions of this application.”

4 . See generally Maiatico v. Hot Shoppes, Inc., 109 U.S.App.D.C. 310, 287 F.2d 349 (1961); Kay v. Cain, 81 U.S.App.D.C. 24, 154 F.2d 305 (1946); City of Boston v. Boston Edison Co., 260 F.2d 872, 879-80 (1st Cir. 1958); Batson-Cook Co. v. Industrial Steel Erectors, 257 F.2d 410, 413 (5th Cir. 1958).

5 . This provision, the contractors say, is unconscionable and should not bo enforced because the application prohibits “interference with traffic unless such interference is specifically authorized by tlie Director of Highways or his representative” and thereby prevents the applicant from discharging his duty to keep the excavation safe. But nothing in this record shows that the contractors sought or required permission to close off the street; or that closing the street was the only means of keeping the excavation safe prior to resurfacing.

6 . See George A. Fuller Co. v. Otis Elevator Co., 245 U.S. 489, 38 S.Ct. 180, 62 L.Ed. 422 (1918) (alternative ground) ; Hines v. Welch, 57 App.D.C. 371, 23 F.2d 979 (1928); Burley Irr. Dist. v. Ickes, 73 App.D.C. 23, 32, 116 F.2d 529, 538 (1940), cert. denied, 312 U.S. 687, 61 S.Ct. 614, 85 L.Ed. 1124 (1941); Kincade v. Wah, 38 A.2d 112 (D.C.Mun.Ct.App. (1944) ; Restatement, Judgments §§ 70, 82 (1942).