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pressly admits and covenants to and covenant that the contractor would be with the city that the plans and speci- solely responsible for all physical infications and other provisions of this juries to persons or property occurcontract, if the work be done without ring on account of or during the perfault or negligence on the part of the formance of the work under the concontractor, do not involve any danger tract, whether or not caused by his to the foundations, walls, or other negligence, contained in article 45 of parts of adjacent buildings or struc- the contract, is a direct promise to pay tures, or to navigation; and the con- to the injured abutter. This article tractor will at his own expense make contains no hint of a liability for ingood any damage that shall, in the demnity. The promise to make good course of construction, be done to any is a promise to pay:

Creed v. Hartsuch foundations, walls, or other parts mann (1864) 29 N. Y. 591, 86 Am. Dec. of adjacent buildings or structures, or 341. Article 47 repeats this obligato navigation. The liability of the tion, and adds thereto a covenant to contractor under this covenant is indemnify the city for all such liabiliabsolute, and it is not dependent upon ties. It is clear that for some of any question of negligence on his part, these injuries the city would not be or on the part of his agents, servants, liable, and the assumed responsibility or employees, and the neglect of the therefor must, therefore, be direct to engineer to direct the contractor to the abutter injured. A covenant meretake any particular precautions or to ly to indemnify the city would be exrefrain from doing any particular pressed in language more simple, and thing, shall not excuse the contractor to so construe these covenants would in case of any such damage. Where emasculate the covenants by taking the work is required to be done by therefrom obligations explicitly astunneling, the same admission and sumed, and such obligations as the covenant shall also apply to the foun- court of appeals has held the municdations, walls, and other parts of ipality is morally bound to impose buildings and to any railroad track or upon a contractor engaged in similar structure, subway, street, conduit, work. These covenants are clearly pipe, sewer, or other structure or sur- distinguishable from those construed face over the tunnel." In another in Haefelin v. McDonald (1904) 96 clause it was provided: “The con- App. Div. 213, 89 N. Y. Supp. 395." tractor shall be solely responsible for The Schnaier Case was treated as a all physical injuries to persons or

controlling precedent in Dooley v. Mcproperty occurring on account of and Mullen (1918; Sup. Ct. App. T.) 172 during the performance of the work N. Y. Supp. 135, where the provision hereunder, and shall indemnify and upon which an action to recover for a save harmless the city from liability similar injury was held to be mainupon any and all claims for damages tainable was as follows: The conon account of such injuries to persons tractor shall be solely responsible for or property, and from all costs and ex- all physical injuries to persons or penses in suits which may be brought property occurring on account of and against the city for such injuries to during the performance of the work person or property; it being distinct- hereunder, and shall indemnify and ly understood, stipulated, and agreed save harmless the city from liability that the contractor shall be solely re- upon any and all claims for damages sponsible and liable for, and shall on account of such injuries to persons fully protect and indemnify the city or property, and from all costs and against, all claims for damages to expenses in suits which may be person or property occasioned by or brought against the city for such inresulting from blasting or other juries to persons or property. It being methods or processes in the work of distinctly understood, stipulated, and construction, whether such damages agreed that the contractor shall be be attributable to negligence of the solely responsible and liable for, and contractor or his employees or other- shall fully protect and indemnify the wise.” Discussing these provisions the city against, all claims for damages to court said: “The covenant of the con- persons or property occasioned by or tractor that he would, at his own ex- resulting from blasting

or other pense, make good any damage that methods or processes in the work of should be done to any foundations, construction, whether such damages walls, or other parts of adjacent build- be attributable to negligence of the ings or structures, and the further contractor or his employees or other

on

wise." An earlier decision (see note sary to maintain and protect gas pipes, 1, supra) of the appellate term of the to repair all damage done to subsupreme court which conflicted with structures, and to be responsible for it-Newman v. Bradley Contracting all damage which might be done to Co. (1917; Sup. Ct. Rep.) 100 Misc. persons or property in the blasting of 1, 164 N. Y. Supp. 757 (involving a rock. It was also stipulated that, similar injury)—was declared to have if injury was caused, the cost and been overruled by the Schnaier Çase. repair were to be paid by the conThe Smyth Case (1911) 203 N. Y. tractors.

Held.

that the defend106, 96 N. E. 409, was also followed in ants were liable for damage occaRigney v. New York C. & H. R. R. Co. sioned to gas pipes in various places (1916) 217 N. Y. 31, 111 N. E. 226, during the progress of the work. The where an action for damage caused question upon which the remedial by a change in the grade of a street rights of the plaintiff were said to consequent upon the construction of a turn was thus stated: “Can the derailroad was held to be maintainable fendants shield themselves under this on a covenant in a contract made be- contract and injure plaintiff's proptween the city and the railroad com- erty, and still say that they are not pany to the effect that in the event of liable under its provisions, which were any damage resulting to any person or evidently made for the benefit of the property from the work done, "includ- plaintiff and those in a like position? ing damages resulting from change of Can they do acts which, without the grade of street, being approaches to contract, would be wrongful, and with said bridge, it will pay and liquidate it are authorized only on condition the same at its own expense, and as- that they compensate the parties insume the liability therefor."

jured? Is their justification comIn New York C. R. Co. v. Barnet plete and available as a defense until .(1920) 192 App. Div. 784, 183 N. Y. they perform as the instrument of Supp. 95, where one of the plaintiff's justification requires ?" In Haefelin

” servants was injured, while a v. McDonald (1904) 96 App. Div. 213, freight car, by coming into collision 89 N. Y. Supp. 395, see note 1, supra, with a fence which had been allowed the court undertook to distinguish the to get into a leaning position, which above decision on the ground that it brought it within 8 inches of cars had reference to a claim based on the moving along a siding which the plain- personal negligence of the contractor tiff had built upon the property of the who was sued, while in the case under defendant, a manufacturer, the action, review, the damage was caused, not held to be maintainable, was brought by the defendant, but by his subconon an express contract by which the tractors. But the validity of the disdefendant “assumed responsibility for tinction thus taken is doubtful, in view all damage to property or injury to of the consideration that the duties of persons, employees or others, which the defendant, whatever they were, might occur on the track of the siding must apparently be regarded as nonto defendant's factory except such as delegable. might be due to the sole negligence of In Continental Asphalt Paving Co. the railroad company." The court v. Hudson & M. R. Co. (1911) 143 App. said: “The injury

. was not Div. 339, 128 N. Y. Supp. 260, where due to the ‘sole negligence of the rail- the defendant was the assignee of a road company, within the meaning of franchise granted by New York city to the contract, but no such negligence the New York & Jersey Railroad Comco-operating with the acts of these pany for the construction of an underdefendants."

ground railroad, it was held that In Glen Falls Gaslight Co. v. Van the following provision inured to the Vranken (1896) 11 App. Div. 420, 42 benefit of the plaintiff company, which N. Y. Supp. 339, the authorities of the had installed water mains under convillage in which the plaintiff main- tract with the city: The grantee tained a system of gas pipes made shall “make good to the city all damwith the defendants a contract for the ages which shall be done to the propconstruction of certain sewers, some erty of the city by the construction or of which were to be built in streets operation of the railroad, and shall through which the plaintiff's gas pipes make good to every owner of property were laid. This contract contained a abutting upon the railroad, or which clause to the effect that the contrac- shall be injured by the work of contors were to take all the steps neces- struction, 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 aotion 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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WILLIAM HORRABIN

v.
CITY OF DES MOINES, Appt.

Iowa Supreme Court - September 26, 1924.

(- Iowa, —, 199 N. W. 988.) 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.] Contribution, § 11 between joint unlawful act involving moral turpiwrongdoers.

tude or delinquency, to the injury of 2. In general, as

between joint another, they are equally guilty, and wrongdoers there can be no contribu

as between them the law will not intion.

quire into their relative delinquency, [See 6 R. C. L. 1054; 2 R. C. L. Supp. 273; 5 R. C. L. Supp. 388.]

or compel contribution at the instance Contribution, S11 committing

of one who has paid the damages. wrongful acts.

[See 6 R. C. L. 1055; 2 R. C. L. Supp. 3. Where two persons commit an 273.]

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sance.

(- Iowa, —, 199 N. W. 988.) Contribution, § 11 doing of act from the good-faith execution of the merely malum prohibitum.

agency. 4. In case of an act committed by [See 14 R. C. L. 51.] two persons which is merely malum Contribution, $ 11 – joint creditors prohibitum, which is in no respect and debtors, § 13 indemnity immoral, while both are liable to the test of right. person injured, if one has paid the

7. A test in determining whether damages, the law will not refuse, as

there may be contribution or indemnibetween the wrongdoers, to determine

ty in favor of one joint wrongdoer their relative guilt and administer

against another is whether the former justice between them.

knew or must be presumed to have [See 6 R. C. L. 1055; 2 R. C. L.

known that the acts for which he has Supp. 273.]

been held liable are wrongful. Contribution, 8 11 trespass or nui

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

273; 14 R. C. L. 51.] 5. Where one of two persons does

Indemnity, $ 10 - effect of contract. an act or creates a nuisance, and the 8. A city which causes a contractor other, while not joining in the act,

to commence construction of a bridge is nevertheless thereby exposed to upon a location for which it underliability to one injured, the rule that took to supply title, before the title there is no contribution between joint was procured, is not relieved from tort-feasors does not apply, and the liability to indemnify the contractor one who was the primary and active for the damages which he is comwrongdoer may be compelled to make pelled to pay for the trespass, by a good to the other any loss occasioned provision in the contract that he is by the act.

to indemnify and hold the city harm[See 6 R. C. L. 1056.]

less for all injury and damages to

person or property arising from any Principal and agent, § 103 — indem

act done or suffered to be done by the nity of agent for act done for prin

contractor, and that the contractor cipal.

will pay all just claims growing out 6. Where one is employed or di- of the work because of trespass, rected by another to do an aot not waste, or neglect of any kind on the manifestly wrong, the law implies a part of the contractor. promise of indemnity by the principal [See 14 R. C. L. 46; 3 R. C. L. Supp. for damages resulting proximately 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.: v. Dunn, 59 Iowa, 619, 13 N. W. 722;

Action in equity by one of two Minneapolis Mill Co. v. Wheeler, 31 parties held jointly liable to a third

Minn. 121, 16 N. W. 698; Old Colony for a trespass to recover against the

R. Co. v. Slavens, 148 Mass. 363, 12 one primarily liable the amount paid

Am. St. Rep. 558, 19 N. E. 372; Gray in satisfaction of the judgment.

v. Boston Gaslight Co. 114 Mass. 149;

Oceanic Steam Nav. Co. v. Compania From a judgment for plaintiff, defendant appeals.

Transatlantica Espanola, 134 N. Y.

461, 30 Am. St. Rep. 685, 31 N. E. 987; Messrs. John J. Halloran, Reson Łowell v. Boston & L, R. Corp. 23 Pick. S. Jones, Chauncy A. Weaver, and 24, 34 Am. Dec. 33; Philadelphia Co. Paul Hewitt for appellant.

v. Central Traction Co. 165 Pa. 456, Messrs. Miller, Kelly, Shuttleworth, 30 Atl. 934; Washington Gaslight Co. & McManus, for appellee:

v. District of Columbia, 161 U. S. 316, There may be indemnity between 40 L. ed. 712, 16 Sup. Ct. Rep. 564. joint tort-feasors where one is inno- Plaintiff and defendant were not in cent of any wrongful intent and the pari delicto and were not equally other commits an intentional wrong. culpable. Therefore, defendant should

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

6 R. C. L. 1055; 1 Cooley, Torts, 3d generally, as between joint wronged. p. 254; 14 R. C. L. 51; Chicago & doers there can be

ContributionN. W. R. Co. v. Dunn, 59 Iowa, 619, 13 no contribution. The between joint N. W. 722; Pennsylvania Steel Co. v. rule is subject to

wrongdoers. Washington & B. Bridge Co. 194 Fed.

exceptions, however. The only ques1011; Des Moines v. Barber Asphalt Co. 208 Fed. 828; Acheson v: Miller, is, under the facts, within any rec

tion in the case is whether appellee 2 Ohio St. 203, 59 Am. Dec. 663. Plaintiff did not commit an inten

ognized exception to the general tional wrong, and therefore may re

rule. cover indemnity from the city.

Judge Cooley, after stating the Chicago v. Robbins, 2 Black, 418, 17 general rule, observes: “But there L. ed. 298; Severin v. Eddy, 52 Ill. are some exceptions to the general 189; Pfau v. Williamson, 63 Ill. 16; rule, which rest upon reasons at Chesapeake & 0. Canal Co. v. Allegany least as forcible as those which supCounty, 57 Md. 201, 40 Am. Rep. 430; port the rule itself.

port the rule itself. They are of Ladd v. Waterbury, 34 Vt. 426.

cases where, although the law holds Vermilion, J., delivered the opin all the parties liable as wrongdoers ion of the court:

to the injured party, yet as between This case was tried below on a themselves some of them may not stipulation of facts, from which it be wrongdoers at all, and their eqappears that the appellee, Horrabin, uity to require the others to respond entered into a written contract with for all the damages may be comthe appellant city to construct a plete. There are many such cases bridge over the Des Moines river at where the wrongs are unintentional, University avenue. The contract is or where the party, by reason of in evidence as a part of the stipula- some relation, is made chargeable tion. From both the contract and with the conduct of others." the stipulation it appears that the The author cites the case of an city agreed to furnish appellee the employee of a railroad company diright of way upon which the bridge rected by its officers to do an act and approach should be constructed. which it turns out they had no right It is stipulated that under the direc- to do, and for doing which he is tion of the city engineer of the ap- made to pay damages, and continpellant, appellee entered upon cer- ues: “Here, if the act was a plain tain land belonging to the Central and manifest wrong, as would be Ice Company, and built the bridge leaving the cars to commit a battery, or the approach thereon, and that at the servant can have no indemnity, that time the city did not have the because he must have known the act right to the use, occupancy, and pos- to be unlawful; but if the act directsession of such land, and did not ac- ed was one he had reason to suppose quire such right until some two was legal, and he obeyed directions years later. It is further stipulated on that supposition, it would ill bethat the Central Ice Company come the railroad company to debrought suit against both the city mand that he be treated as a wrongand appellee for the damages result- doer, when called upon to indemnify ing from the trespass upon its prop- him against the consequences of the erty, and recovered a judgment act its officers had directed. In such against both defendants, which ap- a case the servant is not, in morals, pellee has paid. This action, begun a wrongdoer at all, and his claim to and tried in equity, is to recover of indemnity would be based upon a the city the amount so paid.

faithful obedience to orders which That the city and the appellee he had a right to presume were were, as to the Central Ice Company, rightful, nothing to the contrary apjoint tort-feasors, and therefore pearing."

and therefore pearing.” Cooley, Torts, 2d ed. 167. both liable for the trespass, was set- The doctrine so announced and iltled by the judgment against them. lustrated has been often, and in a It is familiar law that, speaking great variety of situations, applied

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