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(- Iowa, , 199 N. W. 988.) by the courts in cases where, while Asphalt Co. (D. C.) 208 Fed. 828; both parties were liable to the per- Chesapeake & O. Canal Co. v. Alson injured because of some breach legany County, 57 Md. 201, 40 Am. of duty, yet, as between the wrong- Rep. 430; Gray v. Boston Gaslight doers themselves, by reason of their Co. 114 Mass. 149, 19 Am. Rep. relations or a difference in the char- 324; Pfau v. Williamson, 63 Ill. 16; acter of the duty under which they Philadelphia Co. v. Central Traction rested, they were not equally guilty, Co. 165 Pa. 456, 30 Atl. 934; Minwere not in pari delictu.

neapolis Mill Co. v. Wheeler, 31 Where two parties commit an un- Minn. 121, 16 N. W. 698; Churchill lawful act involving moral turpi- v. Holt, 127 Mass. 165, 34 Am. Rep.

tude or delinquency, 355; Oceanic Steam Nav. Co. v. -committing

to the injury of an- Compania Transatlantica Espanola, wrongful acts. other, they are

134 N. Y. 461, 30 Am. St. Rep. 685, equally guilty, and as between them 31 N. E. 987; Union Stock Yards the law will not inquire into their Co. v. Chicago, B. & Q. R. Co. supra. relative delinquency or compel con

Of this class are the numerous tribution at the instance of one who cases holding that a municipality, has paid the damages. But if their upon being called upon to pay a act be merely malum prohibitum, judgment against it for damages

and is in no respect caused by the negligence of one oc-doing of act merely malum immoral, while they cupying a street or sidewalk as a prohibitum.

are both liable to licensee and under obligation to one injured by their unlawful act, avoid the creation of a nuisance, if one has paid the damages the law may recover the amount so paid will not refuse, as between the from the party primarily responsiwrongdoers, to determine their rel- ble for the condition complained of. ative guilt and administer justice Ottumwa v. Parks, 43 Iowa, 119; between them. Lowell v. Boston & Des Moines v. Des Moines Water L. R. Co. 23 Pick. 24, 34 Am. Dec.

Co. 188 Iowa, 24, 175 N. W. 821;

Catterlin 33; Washington Gaslight Co. v. Dis

v. Frankfort, 79 Ind.

547, 41 Am. Rep. 627; Chicago v. trict of Columbia, 161 U. S. 316, 40

Robbins, 2 Black, 418, 17 L. ed. 298; L. ed. 713, 16 Sup. Ct. Rep. 564; Union Stock Yards Co. v. Chicago, Mass. 363, 12 Am. St. Rep. 558, 19

Old Colony R. Co. v. Slavens, 148 B. & Q. R. Co. 196 U. S. 217, 49 L.

N. E. 372; Severin v. Eddy, 52 Ill. ed. 453, 25 Sup. Ct. Rep. 226, 2 Ann.

189; Washington Gaslight Co. v. Cas. 525, 17 Am. Neg. Rep. 760. District of Columbia, 161 U. S. 316,

Where one of two parties does an 40 L. ed. 712, 16 Sup. Ct. Rep. 564. act or creates a nuisance, and the Where one is employed or directother, while not joining in the act, is ed by another to do an act not man

nevertheless there- ifestly wrong, the -trespass or by exposed to liabil

law implies a promnuísance.

Principal and ity to one injured, ise of indemnity by nity of agent the rule that there is no contribution the principal for principal. between joint tort-feasors does not damages resulting apply, and the one who was the pri- proximately from the good-faith exmary and active wrongdoer can be ecution of the agency. Henderson compelled to make good to the other v. Eckern, 115 Minn. 410, 132 N. W. any loss occasioned by the act. Chi- 715, Ann. Cas. 1912D, 989; Guirney cago & N. W. R. Co. v. Dunn, 59 v. St. Paul, M. & M. R: Co. 43 Minn. Iowa, 619, 13 N. W. 722; Westfield 496, 19 Am. St. Rep. 256, 46 N. W. Gas & Mill. Co. v. Noblesville & E. 78; Ladd v. Waterbury, 34 Vt. 426; Gravel Road Co. 13 Ind. App. 481, Lowell v. Boston & L. R. Co. supra; 55 Am. St. Rep. 244, 41 N. E. 955; Williams v. Mercer, 144 Mass. 413, Pennsylvania Steel Co. v. Washing- 11 N. E. 720; Gower v. Emery, 18 ton & B. Bridge Co. (D. C.) 194 Me. 79; Drummond v. Humphreys, Fed. 1011; Des Moines v. Barber 39 Me. 347.

agent-indemn

for act done for

One of the tests in determining proceed with the work upon the whether there may be contribution premises of the Central Ice Comor indemnity in favor of one joint pany, that the city had, in compli

wrongdoer against ance with its contract, procured the Contribution- another is whether right to so use the ground. What joint creditors and debtors, the former knew, or he did was done not for himself, but indemnity-test of right.

must be presumed for the city and under its direction.

to have known, that It involved no moral delinquency, the act for which he has been held but, so far as he was concerned, was liable was wrongful. Johnson v. merely the performance of his legal Torpy, 35 Neb. 604, 37 Am. St. Rep. contract. That he acted in igno447, 53 N. W. 575; Acheson v. Mil- rance of the fact that the city had no ler, 2 Ohio St. 203, 59 Am. Dec. right to go upon the land in ques663; Gower v. Emery, 18 Me. 79; tion is the plain inference from the Drummond v. Humphreys, supra; facts stipulated. As between himArmstrong County v. Clarion Coun- self and the city, the wrong was the ty, 66 Pa, 218, 5 Am. Rep. 368; Bail- wrong of the city; they were not in ey v. Bussing, 28 Conn. 455; Jacobs pari delictu. v. Pollard, 10 Cush. 287, 57 Am. Nor do we think the city was reDec. 105; Farwell v. Becker, 129 Ill. lieved from liability by provisions of 261, 6 L.R.A. 400, 16 Am. St. Rep. the contract to the 267, 21 N. E. 792; Atkins v. John- effect that appellee Indemnity-ef

. son, 43 Vt. 78, 5 Am. Rep. 260. See should indemnify also 6 R. C. L. 1054, and 31 C. J. and hold the city harmless from all 455.

injury or damages to persons or With these principles in mind it property, arising from any act done seems clear that the facts of the or suffered to be done by the appel

present case bring lee, and that appellee would pay all Joint creditors and debtors

it within an excep- just claims growing out of the work

tion to the general because of trespass, waste, or negliduty of city to indemnify con- rule that there can gence of any kind on the part of aptractor.

be no contribution pellee. It would not be contended, or indemnity between joint tort- we think, that these provisions feasors. The appellee was but could operate to relieve the city from carrying out his contract with the its obligation to procure the necescity. That contract provided that sary right of way for the constructhe city should procure the neces

tion of the bridge. But, if they are sary right of way for the construc- to be construed as requiring appellee tion of the bridge and approach. to pay the damages caused by his Any uncertainty in this respect aris- entry, under direction of the city, ing from the somewhat ambiguous upon the land where the bridge and language of the contract is entirely approach were to be constructed, removed by the stipulation upon and which the city undertook to prowhich the case was submitted. He

cure for that purpose, he could as entered upon the land of the Central

logically and reasonably be required Ice Company and constructed the

to pay the damages caused by the approach thereon, by direction of the city's engineer in charge of the taking of the land and the construc

tion thereon of the permanent imwork. While as between himself and the owner of the property he

provement. The effect of these pro

visions of the contract was neither was a trespasser, and liable as such, as between himself and the city he

to release the city from its obligawas but acting in fulfilment of his tion to procure the right of way, nor contract and under the direction of to relieve it, as between itself and the properly constituted authority appellee, from liability for the damof an officer of the city. He had a ages caused by an act of the appelright to assume, when directed to lee, committed under its direction in

indemnity

(Iowa, —, 199 N. W. 988.) the carrying out of the contract, and

NOTE. which would not have been wrongful had the city, as appellee had a The liability of contractor and conright to assume, performed its con

tractee inter se in respect of damages tract.

paid to third persons for injuries susThe judgment is right, and is af

tained during the progress of the stipfirmed.

ulated work is the subject of the anno

tation following JOHN GRIFFITHS & Arthur, Ch. J., and Stevens and SON Co. v. NATIONAL FIREPROOFING CO. De Graff, JJ., concur.

post, 566.

JOHN GRIFFITHS & SON COMPANY

V.
NATIONAL FIREPROOFING COMPANY, Appt.

Illinois Supreme Court - December 19, 1923.

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(310 Ill. 331, 141 N. E. 739.) Contracts, § 368 - indemnity against statutory liability – §

public policy. 1. Public policy does not prevent a contractor from undertaking to indemnify the building owner against loss due to his negligence in failing to have a scaffold safe, although the statute makes it the owner's personal duty to see that it is safe.

[See note on this question beginning on page 566.] Master and servant, $ 459 — statutory Indemnity, § 1 against primary

duty effect of independent con- wrongdoer. tract.

4. Where one is exposed to liability 2. The duty imposed by statute upon

by the wrongful act of another, in the owner of a building under con

which he does not join, he may restruction to take certain precautions against injury to persons in the vicin

cover against the principal delinquent ity cannot be evaded by contract with

for any damages suffered, and the law a contractor or subcontractor.

will inquire into the real delinquency [See 14 R. C. L. 99; 3 R. C. L. Supp.

and place the ultimate liability upon 172; 5 R. C. L. Supp. 745. See also him whose fault was the primary note in 23 A.L.R. 989.]

cause of the injury. Joint creditors and debtors, § 13

[See 14 R. C. L. 52; 3 R. C. L. Supp. contribution between wrongdoers. 160; 4 R. C. L. Supp. 868.]

3. Where two persons acting together commit an illegal or wrongful

Public policy, § 2 where found. act to the injury of another, the latter 5. The public policy of a state is may hold both responsible for the

to be found in its Constitution and damages resulting from the joint act,

statutes and, where these are silent, ai neither can recover from the er

in its judicial decisions. the damages which he may have paid,

[See 6 R. C. L. 109; 2 R. C. L. Supp. or any part of them.

[See 6 R. C. L. 1056; 5 R. C. L. 30; 4 R. C. L. Supp. 383; 5 R. C. L. Supp. 388.]

Supp. 320.]

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APPEAL by defendant from a judgment of the Third Branch of the Appellate Court, First District, affirming a judgment of the Municipal Court of Chicago (Hayes, J.) in favor of plaintiff in an action brought to secure indemnity for damages paid by it to a third person for an accidental injury. Affirmed.

The facts are stated in the opinion of the court.

Mr. John T. Richards, for appellant: Company for $9,921.87. The appel

A contract or undertaking to indem- lant, having obtained a certificate nify a person against loss which such

of importance, has prosecuted an apperson may suffer by reason of his

peal to this court from the judgment own violation of the law is against

of the appellate court. public policy and void. Herman v. Jeuchner, L. R. 15 Q. B.

The municipal court sustained the Div. 561 - C. A.; Nash v. Monheimer,

motion of the appellee to strike out 20 Ill. 215; Goodrich v. Tenney, 144

the affidavit of merits of the appelIll. 422, 19 L.R.A. 371, 36 Am. St. Rep.

lant and rendered judgment by de459, 33 N. E. 44; Fields v. Brown, 188 fault. The question presented, Ill. 111, 58 N. E. 977; Penn v. Born- . therefore, is whether the affidavit of man, 102 Ill. 523; Nelson v. Cook, 17 merits stated a defense to the appelIll. 443; Crichfield v. Bermudez As- lee's claim. The appellee's statephalt Paving Co. 174 Ill. 466, 42 L.R.A.

ment of claim showed the following 347, 51 N. E. 552; Compton v. Bunker

facts: Hill Bank, 96 Ill. 301, 36 Am. Rep. 147; Harris v. Hatfield, 71 Ill. 298; Dout

The appellee, being the general hart v. Congdon, 197 Ill. 349, 90 Am.

contractor for the construction of St. Rep. 167, 64 N. E. 348; Henderson the Lytton Building, in the city of v. Palmer, 71 Ill. 579, 22 Am. Rep. Chicago, for The Hub, a corporation, 117; Brown v. First Nat. Bank, 137 which was the owner, entered into a Ind. 655, 24 L.R.A. 206, 37 N. E. 158; contract with the appellant to do the Buffendeau V. Brooks, 28 Cal. 641;

fireproofing work on the building. Miller v. Ammon, 145 U. S. 421, 36

The contract provided that the apL. ed. 759, 12 Sup. Ct. Rep. 884; Har

pellant should exercise due diligence rington v. Crawford, 136 Mo. 467, 35 L.R.A. 477, 58 Am. St. Rep. 653, 38

in the performance of the work, and S. W. 80; Wright v. Gardner, 98 Ky.

should hold the appellee and The 454, 33 S. W. 622, 35 S. W. 1116;

Hub harmless from loss, cost, or exRatcliffe v. Smith, 13 Bush, 174; Col- pense arising from any and every lins v. Blantern, 2 Wils. 341, 95 Eng. accident happening to any person Reprint, 847; Atkins v. Johnson, 43 Vt. whomsoever and occasioned directly 78, 5 Am. Rep. 260; Shackell v. Rosier, or indirectly by the operations of the 2 Bing. N. C. 634, 132 Eng. Reprint, appellant or by its subcontractors. 245; Hunt v. Knickerbacker, 5 Johns.

During the progress of the appel326; West Virginia Transp. Co. v.

lant's work under this contract John Ohio River Pipe Line Co. 22 W. Va. 600, 46 Am. Rep. 527.

Slaughter was accidentally injured Where both parties are guilty of a

by a piece of fireproof tiling of the violation of the statute, the court will appellant falling out of one of the not inquire which of the two is more windows of the building on his head. in the wrong.

Immediately before the happening Pierson v. Thompson, 1 Edw. Ch. of the accident, the appellant had 212; Harris v. Hatfield, 71 Ill. 298; erected a scaffold on one of the upStanton V. Metropolitan R. Co. 14 v.

per floors of the building, which was Allen, 485; Atkins v. Johnson, 43 Vt.

used by its servants in its operations 78, 5 Am. Rep. 260.

under the contract, one of whom The parties to this case

placed a pile of fireproof tile on the joint tort-feasors.

scaffold, a part of which fell off the Yeazal v. Alexander, 58 Ill. 254.

scaffold upon the window ledge, and Messrs. Winston, Strawn, & Shaw, John Clark Baker, John D. Black, and

through the window on Slaughter. Rodney C. Glover for appellee.

Slaughter afterwards brought suit

in the superior court of Cook county Dunn, J., delivered the opinion of against the appellee, The Hub, and the court:

others, including appellant, for the The appellate court for the first recovery of $30,000 damages on acdistrict affirmed a judgment of the count of his injuries. The appellant, municipal court of Chicago in favor in consideration of the execution of of the John Griffiths & Son Company a covenant by Slaughter not to against the National Fireproofing prosecute any action against it, paid

are not

(310 Ill. 331, 141 N. E. 139.) him $7,500, and Slaughter dismissed erty of the appellant, and all the emhis action. Afterwards he brought ployees and servants mentioned in

. another action in the circuit court of the declaration were the servants of Cook county against the appellee, the appellant; that on the trial of the The Hub, and others, not including action the judge instructed the jury the National Fireproofing Company, there could be no recovery on any to recover $30,000 damages for his other ground than a violation of the injuries. The appellee notified the statute relied upon in the plaintiff's appellant of the pendency of the declaration, and thereupon the jury action, and demanded that the appel- returned a verdict against the appellant assume the defense of it, and lee and The Hub, assessing the damhold the appellee harmless from any ages at $20,000, for which judgment judgment or expense growing out of was entered. The appellee and The it; but the appellant refused to de- Hub prayed an appeal to the appelfend the action, and the appellee by late court, which affirmed the judgits attorney defended.

ment to the amount of $7,500, all of The declaration of Slaughter con- the judgment above that amount besisted of eight counts, but, as the ing remitted by the plaintiff. The cause was tried on the first four, appellee paid Slaughter the amount only those counts need be stated. of the judgment and paid its attorEach of the first four counts alleged neys $1,000 for their services in dethat the defendants were engaged in fending the action. the construction of the Lytton Build- The amended affidavit of merits ing, and that a scaffold had been set out at length $8 1 and 9 of the erected, with their knowledge and act of the legislature mentioned in consent, on the ninth floor; that the the appellee's statement of claim, defendants wilfully failed to comply and alleged that in John Slaughter's with the provisions of § 9 of the act, suit, in which jdugment was renproviding for the protection and dered against the appellee, the decsafety of persons engaged in the laration charged that the failure of construction, repairing, alteration, the appellee to comply with the or removal of buildings, bridges, via- terms of the statute caused the inducts, and other structures (Laws jury and damages complained of. It 1907, p. 312), and did not cause the set forth the instructions of the scaffold to be erected in a safe, suit- court, which told the jury, in subable, and proper manner, but permit- stance, that they should find any ted it to be erected and constructed defendant who was not shown by the in such a manner that it was shaky preponderance of the evidence to and easily vibrated, and they per- have had knowledge of the erection mitted large quantities of building or construction of the scaffold, or to material, consisting of tile, brick, have consented to its construction or and terra cotta, to be piled on the erection, not guilty, and that, rescaffold, and while the plaintiff was gardless of any other question, working in another building adjoin- there could be no recovery under the ing the Lytton Building a piece of statute, unless it was proved that such material fell from the scaffold the violation of such statute, if any, upon the plaintiff, struck him upon was intentional and wilful. The affithe head, and injured him.

davit alleged that by the verdict and The appellee's statement of claim judgment of the circuit court the set forth that the building in the appellee was adjudged guilty of the declaration mentioned was the build- violation of the statute and of failing upon which the appellant was ure to comply with its requirements. conducting its operations under its It is contended by the appellant contract with the appellee; that the that its undertaking to indemnify scaffold was the appellant's scaffold, the appellee against all loss, cost, or and the building material — tile, expense arising from any accident to brick, and terra cotta-was the prop- any person occasioned by the opera

38 A.L.R.-36.

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