Shea v. City of Los Angeles

SCOTT, J.,

pro

tem.

Plaintiffs recovered judgment against defendant for work done in connection with construction of a storm drain and defendant appeals.

The plans for the storm drain showed a sanitary sewer below and parallel to a portion of the storm drain. While excavating this portion plaintiffs discovered leakage from the sewer due to defects in it and too great pressure, so that the trench was flooded and the sides caved in. Complaint was made to the board of public works of defendant city and with their approval and under their direction plaintiff pumped out the water and went ahead with his work. One cause of action in this case was for damages based on the foregoing facts.

The plans also showed that some filling in was “in progress” or “contemplated” on a portion of the ground which was below the level to be attained on completion but just how much and when it was to be filled in could not be ascertained by plaintiffs before they made their bid. After the bid was in, certain filling in was done on certain streets under the control of defendant pursuant to the permission given by defendant. This necessitated excavation and tunneling in addition to that called for at the time the bid was submitted and the expense thereof constituted further causes of action by plaintiffs.

[536]

The contract was entered into -and the work was done under the “Improvement Act of 1911” (Stats. 1911, p. 730), as amended. The contract contained language which reasonably may be construed as requiring plaintiffs to inform themselves as to conditions and to bear the burdens incidental to overcoming the obstacles which might appear and were in part as follows: “Sec. 2. Examination of Ground. Bidders must examine and judge for themselves as to the location and surrounding of the proposed work, the nature of the excavation to be made, and the work to be done. The plans, profiles and other drawings for the work will show conditions as they are supposed or believed by the City Engineer to exist, but it is not intended or to be inferred that the conditions as shown thereon constitute a representation by the City, or its officers, that such conditions are actually existent, nor shall the City or any of its officers be liable for any loss sustained by the contractor as a result of any variance between conditions as shown on the plans and the actual conditions revealed during progress of the work or otherwise.” “See. 15. Loss or Damage. All loss or damage arising from any unforeseen obstruction or difficulties, either natural or artificial, which may be encountered in the prosecution of the work, or from any action of the elements prior to the final acceptance of the work, or from any act or omission not authorized by these specifications on the part of the contractor, or any agent or person employed by him, shall be sustained by the Contractor.” “Sec. 102'. Extent of Excavation. The contractor shall make sufficient excavation to construct all work shown on the plans. Excavation shall include the removal of all water and all materials or obstructions of any nature that would interfere with the execution of the work. The bottom of excavation shall be free from all loose material at the time concrete is deposited. ...”