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pressly admits and covenants to and with the city that the plans and specifications and other provisions of this contract, if the work be done without fault or negligence on the part of the contractor, do not involve any danger to the foundations, walls, or other parts of adjacent buildings or structures, or to navigation; and the contractor will at his own expense make good any damage that shall, in the course of construction, be done to any such foundations, walls, or other parts of adjacent buildings or structures, or to navigation. The liability of the contractor under this covenant is absolute, and it is not dependent upon any question of negligence on his part, or on the part of his agents, servants, or employees, and the neglect of the engineer to direct the contractor to take any particular precautions or to refrain from doing any particular thing, shall not excuse the contractor in case of any such damage. Where the work is required to be done by tunneling, the same admission and covenant shall also apply to the foundations, walls, and other parts of buildings and to any railroad track or structure, subway, street, conduit, pipe, sewer, or other structure or surface over the tunnel." In another clause it was provided: "The contractor shall be solely responsible for all physical injuries to persons or property occurring on account of and during the performance of the work hereunder, and shåll indemnify and save harmless the city from liability upon any and all claims for damages on account of such injuries to persons or property, and from all costs and expenses in suits which may be brought against the city for such injuries to person or property; it being distinctly understood, stipulated, and agreed that the contractor shall be solely responsible and liable for, and shall fully protect and indemnify the city against, all claims for damages to person or property occasioned by or resulting from blasting or other methods or processes in the work of construction, whether such damages be attributable to negligence of the contractor or his employees or otherwise." Discussing these provisions the court said: "The covenant of the contractor that he would, at his own expense, make good any damage that should be done to any foundations, walls, or other parts of adjacent buildings or structures, and the further

covenant that the contractor would be solely responsible for all physical injuries to persons or property occurring on account of or during the performance of the work under the contract, whether or not caused by his negligence, contained in article 45 of the contract, is a direct promise to pay to the injured abutter. This article contains no hint of a liability for indemnity. The promise to make good is a promise to pay. Creed v. Hartmann (1864) 29 N. Y. 591, 86 Am. Dec. 341. Article 47 repeats this obligation, and adds thereto a covenant to indemnify the city for all such liabilities. It is clear that for some of these injuries the city would not be liable, and the assumed responsibility therefor must, therefore, be direct to the abutter injured. A covenant merely to indemnify the city would be expressed in language more simple, and to so construe these covenants would emasculate the covenants by taking therefrom obligations explicitly assumed, and such obligations as the court of appeals has held the municipality is morally bound to impose upon a contractor engaged in similar work. These covenants are clearly distinguishable from those construed in Haefelin v. McDonald (1904) 96 App. Div. 213, 89 N. Y. Supp. 395."

The Schnaier Case was treated as a controlling precedent in Dooley v. McMullen (1918; Sup. Ct. App. T.) 172 N. Y. Supp. 135, where the provision upon which an action to recover for a similar injury was held to be maintainable was as follows: "The contractor shall be solely responsible for all physical injuries to persons or property occurring on account of and during the performance of the work hereunder, and shall indemnify and save harmless the city from liability upon any and all claims for damages on account of such injuries to persons or property, and from all costs and expenses in suits which may be brought against the city for such injuries to persons or property. It being distinctly understood, stipulated, and agreed that the contractor shall be solely responsible and liable for, and shall fully protect and indemnify the city against, all claims for damages to persons or property occasioned by or resulting from blasting or other methods or processes in the work of construction, whether such damages be attributable to negligence of the contractor or his employees or other

wise." An earlier decision (see note 1, supra) of the appellate term of the supreme court which conflicted with it-Newman v. Bradley Contracting Co. (1917; Sup. Ct. Rep.) 100 Misc. 1, 164 N. Y. Supp. 757 (involving a similar injury)—was declared to have been overruled by the Schnaier Çase.

The Smyth Case (1911) 203 N. Y. 106, 96 N. E. 409, was also followed in Rigney v. New York C. & H. R. R. Co. (1916) 217 N. Y. 31, 111 N. E. 226, where an action for damage caused by a change in the grade of a street consequent upon the construction of a railroad was held to be maintainable on a covenant in a contract made between the city and the railroad company to the effect that in the event of any damage resulting to any person or property from the work done, "including damages resulting from change of grade of street, being approaches to said bridge, it will pay and liquidate the same at its own expense, and assume the liability therefor."

In New York C. R. Co. v. Barnet (1920) 192 App. Div. 784, 183 N. Y. Supp. 95, where one of the plaintiff's servants was injured, while on a freight car, by coming into collision with a fence which had been allowed to get into a leaning position, which brought it within 8 inches of cars moving along a siding which the plaintiff had built upon the property of the defendant, a manufacturer, the action, held to be maintainable, was brought on an express contract by which the defendant "assumed responsibility for all damage to property or injury to persons, employees or others, which might occur on the track of the siding to defendant's factory except such as might be due to the sole negligence of the railroad company." The court said: "The injury was not due to the 'sole negligence' of the railroad company, within the meaning of the contract, but no such negligence co-operating with the acts of these defendants."

In Glen Falls Gaslight Co. v. Van Vranken (1896) 11 App. Div. 420, 42 N. Y. Supp. 339, the authorities of the village in which the plaintiff maintained a system of gas pipes made with the defendants a contract for the construction of certain sewers, some of which were to be built in streets. through which the plaintiff's gas pipes were laid. This contract contained a clause to the effect that the contractors were to take all the steps neces

sary to maintain and protect gas pipes, to repair all damage done to substructures, and to be responsible for all damage which might be done to persons or property in the blasting of rock. It was also stipulated that, if injury was caused, the cost and repair were to be paid by the contractors. Held, that the defendants were liable for damage occasioned to gas pipes in various places during the progress of the work. The question upon which the remedial rights of the plaintiff were said to turn was thus stated: "Can the defendants shield themselves under this contract and injure plaintiff's property, and still say that they are not liable under its provisions, which were evidently made for the benefit of the plaintiff and those in a like position? Can they do acts which, without the contract, would be wrongful, and with it are authorized only on condition that they compensate the parties injured? Is their justification complete and available as a defense until they perform as the instrument of justification requires?" In Haefelin v. McDonald (1904) 96 App. Div. 213, 89 N. Y. Supp. 395, see note 1, supra, the court undertook to distinguish the above decision on the ground that it had reference to a claim based on the personal negligence of the contractor who was sued, while in the case under review, the damage was caused, not by the defendant, but by his subcontractors. But the validity of the distinction thus taken is doubtful, in view of the consideration that the duties of the defendant, whatever they were, must apparently be regarded as nondelegable.

In Continental Asphalt Paving Co. v. Hudson & M. R. Co. (1911) 143 App. Div. 339, 128 N. Y. Supp. 260, where the defendant was the assignee of a franchise granted by New York city to the New York & Jersey Railroad Company for the construction of an underground railroad, it was held that the following provision inured to the benefit of the plaintiff company, which had installed water mains under contract with the city: The grantee shall "make good to the city all damages which shall be done to the property of the city by the construction or operation of the railroad, and shall make good to every owner of property abutting upon the railroad, or which shall be injured by the work of construction, or by operation thereof, all

physical damage which shall be done to such abutting or injured property through any act or omission of the tunnel company [New York & Jersey Railroad Company], or successor thereof, or of any contractor, subcontractor, or other person in the course of any employment upon the construction or operation of the railroad, or any part thereof." The complaint charged that in the course of construction of the railroad it became necessary to change and reconstruct a certain sewer; and that this work was done by a subcontractor, who performed it in such a way as to cause plaintiff damage. Held, that the facts alleged "brought the case within the rule that, where one party makes a promise for a valuable consideration for the benefit of a third person, that third person may maintain an action upon the promise." The court said: "In the present case the agreement or covenant of the Jersey Company to maintain all water pipes encountered during the progress of the work and to make good to every owner of property injured in the construction or opera

tion of the railroad, was made with the city upon a new or present consideration, which was the granting to such company of a franchise. The plaintiff, when it entered into its contract with the city to lay the highpressure main, had a right to rely upon the covenant or agreement of the Jersey Company, to the effect that it would maintain and support the plaintiff's water mains wherever and whenever encountered during the course of construction of the underground railroad, or any part thereof, and if it caused damage either in the construction or operation to abutting owners, it would make good the same. The defendant, as it seems to me, is not only liable by express provisions of the franchise which inured to the plaintiff's benefit, but also under the principle laid down in Little v. Banks (1881) 85 N. Y. 258" (see § 22, note 1, supra).

See also Corrigan Transit Co. v. Sanitary Dist. (1905) 70 C. C. A. 381, 137 Fed. 851, reviewed in note 1, supra. C. B. L

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Joint creditors and debtors, § 13- indemnity-duty of city to indemnify contractor.

1. One employed by a city to construct a bridge on a right of way to be furnished by the city is entitled to indemnity from the city for damages which he is compelled to pay for trespass in the good-faith use of the right of way under direction of the city, when the city had not acquired title to it.

[See note on this question beginning on page 566.]

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(— Iowa, -, 199 N. W. 988.)

doing of act merely malum prohibitum.

4. In case of an act committed by two persons which is merely malum prohibitum, which is in no respect immoral, while both are liable to the person injured, if one has paid the damages, the law will not refuse, as between the wrongdoers, to determine their relative guilt and administer justice between them.

[See 6 R. C. L. 1055; 2 R. C. L. Supp. 273.]

Contribution, § 11 trespass or nui

sance.

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from the good-faith execution of the agency.

[See 14 R. C. L. 51.] Contribution, § 11 joint creditors and debtors, § 13 indemnity test of right.

7. A test in determining whether there may be contribution or indemnity in favor of one joint wrongdoer against another is whether the former knew or must be presumed to have known that the acts for which he has been held liable are wrongful.

[See 6 R. C. L. 1055; 2 R. C. L. Supp. 273; 14 R. C. L. 51.]

Indemnity, § 10-effect of contract.

8. A city which causes a contractor to commence construction of a bridge upon a location for which it undertook to supply title, before the title was procured, is not relieved from liability to indemnify the contractor for the damages which he is compelled to pay for the trespass, by a provision in the contract that he is to indemnify and hold the city harmless for all injury and damages to person or property arising from any act done or suffered to be done by the contractor, and that the contractor will pay all just claims growing out of the work because of trespass, waste, or neglect of any kind on the part of the contractor.

[See 14 R. C. L. 46; 3 R. C. L. Supp. 159; 4 R. C. L. Supp. 867.]

APPEAL by defendant from a judgment of the District Court for Polk County (Hume, J.) in favor of plaintiff in an action brought to recover indemnity for damages he was compelled to pay on account of an alleged trespass. Affirmed.

Statement by Vermilion, J.:

Action in equity by one of two parties held jointly liable to a third for a trespass to recover against the one primarily liable the amount paid in satisfaction of the judgment. From a judgment for plaintiff, defendant appeals.

Messrs. John J. Halloran, Reson S. Jones, Chauncy A. Weaver, and Paul Hewitt for appellant.

Messrs. Miller, Kelly, Shuttleworth, & McManus, for appellee:

There may be indemnity between joint tort-feasors where one is innocent of any wrongful intent and the other commits an intentional wrong.

22 Cyc. 95; Chicago & N. W. R. Co.

v. Dunn, 59 Iowa, 619, 13 N. W. 722; Minneapolis Mill Co. v. Wheeler, 31 Minn. 121, 16 N. W. 698; Old Colony R. Co. v. Slavens, 148 Mass. 363, 12 Am. St. Rep. 558, 19 N. E. 372; Gray v. Boston Gaslight Co. 114 Mass. 149; Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola, 134 N. Y. 461, 30 Am. St. Rep. 685, 31 N. E. 987; Lowell v. Boston & L. R. Corp. 23 Pick. 24, 34 Am. Dec. 33; Philadelphia Co. v. Central Traction Co. 165 Pa. 456, 30 Atl. 934; Washington Gaslight Co. v. District of Columbia, 161 U. S. 316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564.

Plaintiff and defendant were not in pari delicto and were not equally culpable. Therefore, defendant should indemnify plaintiff.

6 R. C. L. 1055; 1 Cooley, Torts, 3d ed. p. 254; 14 R. C. L. 51; Chicago & N. W. R. Co. v. Dunn, 59 Iowa, 619, 13 N. W. 722; Pennsylvania Steel Co. v. Washington & B. Bridge Co. 194 Fed. 1011; Des Moines v. Barber Asphalt Co. 208 Fed. 828; Acheson v. Miller, 2 Ohio St. 203, 59 Am. Dec. 663.

Plaintiff did not commit an intentional wrong, and therefore may recover indemnity from the city.

Chicago v. Robbins, 2 Black, 418, 17 L. ed. 298; Severin v. Eddy, 52 Ill. 189; Pfau v. Williamson, 63 Ill. 16; Chesapeake & O. Canal Co. v. Allegany County, 57 Md. 201, 40 Am. Rep. 430; Ladd v. Waterbury, 34 Vt. 426.

Vermilion, J., delivered the opinion of the court:

This case was tried below on a stipulation of facts, from which it appears that the appellee, Horrabin, entered into a written contract with the appellant city to construct a bridge over the Des Moines river at University avenue. The contract is in evidence as a part of the stipulation. From both the contract and the stipulation it appears that the city agreed to furnish appellee the right of way upon which the bridge and approach should be constructed. It is stipulated that under the direction of the city engineer of the appellant, appellee entered upon certain land belonging to the Central Ice Company, and built the bridge or the approach thereon, and that at that time the city did not have the right to the use, occupancy, and possession of such land, and did not acquire such right until some two years later. It is further stipulated that the Central Ice Ice Company brought suit against both the city and appellee for the damages resulting from the trespass upon its property, and recovered a judgment against both defendants, which appellee has paid. This action, begun and tried in equity, is to recover of the city the amount so paid.

That the city and the appellee were, as to the Central Ice Company, joint tort-feasors, and therefore both liable for the trespass, was settled by the judgment against them. It is familiar law that, speaking

generally, as between joint wrongdoers there can be Contributionno contribution. The between joint rule is subject to wrongdoers. exceptions, however. The only question in the case is whether appellee is, under the facts, within any recognized exception to the general rule.

Judge Cooley, after stating the general rule, observes: "But there are some exceptions to the general rule, which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet as between themselves some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of others."

The author cites the case of an employee of a railroad company directed by its officers to do an act which it turns out they had no right to do, and for doing which he is made to pay damages, and continues: "Here, if the act was a plain and manifest wrong, as would be leaving the cars to commit a battery, the servant can have no indemnity, because he must have known the act to be unlawful; but if the act directed was one he had reason to suppose was legal, and he obeyed directions on that supposition, it would ill become the railroad company to demand that he be treated as a wrongdoer, when called upon to indemnify him against the consequences of the act its officers had directed. In such a case the servant is not, in morals, a wrongdoer at all, and his claim to indemnity would be based upon a faithful obedience to orders which he had a right to presume were rightful, nothing to the contrary appearing." Cooley, Torts, 2d ed. 167.

The doctrine so announced and illustrated has been often, and in a great variety of situations, applied

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