criminal, the principal delinquent may be held responsible to a codelinquent for damages paid by reason of the offense in which both were concerned in different degrees as perpetrators." Brooklyn v. Brooklyn City R. Co. (1872) 47 N. Y. 475, 7 Am. Rep. 469.

"This liability [i. e., of the contractor] grows out of the affirmative act of the defendant and renders him liable not only to the party injured, but also mediately liable to any party who has been damnified by his neglect. Liability in such a case is predicated upon the negligent character of the act which caused the injury and the general principle of law which makes a party responsible for the consequences of his own wrongful conduct." Port Jervis v. First Nat. Bank (1884) 96 N. Y. 550.

"The plaintiff's alleged liability must be predicated upon the rule of law under which a person guilty of negligence is charged with the responsibility for his wrongful act, not only directly to the person injured, but indirectly to a person who is legally liable therefor. In the latter case the wrongdoer stands in the relation of indemnitor to the person who has been held legally liable, and the right to indemnity rests upon the principle that everyone is responsible for the consequences of his own wrong, and if another person has been compelled to pay the damages which the wrongdoer should have paid, the latter becomes liable to the former." Dunn v. Uvalde Asphalt Paving Co. (1903) 175 N. Y. 214, 67 N. E. 439.

"It is well settled that as to the public or third persons, one of two parties may be held primarily responsible, without diminishing the obligations of the other, or impairing the right of action over against him." Chesapeake & O. Canal Co. v. Allegany County (1881) 57 Md. 220, 40 Am. Rep. 430.

"The law is well settled that, where one who is secondarily liable is compelled to respond in damages to the injured party, he may recover the amount paid from the person primarily liable." Sweet v. Atkinson (1921) 191 Iowa, 645, 182 N. W. 793.

"One liable only on account of a duty of care owing the plaintiff, but without participation in a tort committed by another, may, whether in the original suit or by an independent action, recover over against the perpetrator of the wrong." Shearm. & Redf. Neg. 6th ed. 24b.

The leading American case as to the obligation of a principal wrongdoer to indemnify a party secondarily liable is Lowell v. Boston & L. R. Corp. (1839) 23 Pick. (Mass.) 24, 34 Am. Dec. 33, where a municipality was held to be entitled to recover from a railroad company the amount of the damages which the former had been compelled to pay to a traveler for injuries caused by falling at night into a cutting excavated across a highway and left unguarded and unlighted. It was urged that the plaintiffs or their officers had been guilty of neglect, as well as the agents of the defendants; that it was their especial duty to see to it that their roads and streets were kept in good repair and safe for travel; and that they, therefore, being culpable, and participes criminis, were not, by the policy of the law, allowed to recover damages, as an indemnity, against their codelinquents. But this objection did not prevail. The court said: "The general rule of law is that where two parties participate in the commission of a criminal act, and one party suffers damage thereby, he is not entitled to indemnity, or contribution, from the other party. So, also, is the rule of the civil law. 'Nemo ex delicto consequi potest actionem.' The French law is more indulgent, and allows a trespasser, who has paid the whole damages, to maintain an action for contribution against his cotrespasser. Pothier, Obligations, 282.

Our

law, however, does not in every case disallow an action by one wrongdoer against another to recover damages incurred in consequence of their joint offense. The rule is, 'in pari delicto potior est conditio defendentis.' If the parties are not equally criminal, the principal delinquent may be held responsible to his codelinquent for damages incurred by their joint offense. In respect to offenses in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offense is merely malum prohibitum, and is in no respect immoral, it is not against the policy of the law to inquire into the relative delinquency of the parties, and to administer justice between them, although both parties are wrongdoers. The defendants' agent, who had the superintendence of their works, was the first and principal wrongdoer. It was his duty to see to it that the

merely with "constructive fault," 2 and is consequently not in pari delicto

barriers were put up when the works were left at night; his omission to do it was gross negligence, and for this the defendants were clearly responsible to the parties injured."

The New York cases cited above would seem, so far as that state is concerned, to have virtually destroyed the authority of Buffalo V. Holloway (1852) 7 N. Y. 493, 57 Am. Dec. 550, affirming (1852) 14 Barb. 101, where the action was brought by a city to recover from a contractor the amount which it had paid to a pedestrian as damages for an injury caused by a fall into the trench excavated for a sewer. The complaint, which stated that it was the duty of the defendant, while the hole remained open to erect and maintain lights, guards, and barriers about it, to protect persons lawfully traveling along the street against falling therein, was pronounced bad for the reason that it did not state any facts from which the alleged duty arose. The court said: "The city might have contracted with the defendant to take such measures; in that event the duty, as between him and the city, would have devolved upon him, and he would have been liable for all the consequences resulting to it for any neglect on his part in observing his stipulations in that respect; or the city may have judged the measures unnecessary, and therefore omitted to provide for them in its contract with the defendant; or, if otherwise, the city might have chosen to contract for the doing of that service with some other person. In either case, the defendant would owe no such duty to the city, whatever liability he might have incurred to others, who suffered by the digging of the pit and leaving it open, without such measures having been taken to guard against the danger which there was in passing in the street." The position of the court is also indicated by its declaration that, "as between the city of Buffalo and the defendant, the obligation of the latter extended no farther than to perform his part of the contract made for the construction of the sewer, according to its terms, with reasonable skill; and consequently he is only liable to the city to compensate it for such injuries as it sustained for want of the

with the former.3 In this point of view, the applicability of the rule is exercise of such skill in the performance of his contract in that manner.”

Buffalo v. Holloway was followed in Silvers v. Nerdlinger (1868) 30 Ind. 53, where an action brought against a building contractor to recover the amount which the plaintiff, his employer, had been compelled to pay as damages for an injury sustained by a pedestrian from falling into an unguarded excavation, made by the contractor for an area, was held not to be maintainable, for the reason that the contract did not contain any provision that the contractor should have exclusive possession of the plaintiff's lot, or any stipulation that the area was to be kept properly guarded during the progress of the work. The court said: "If Silvers, by digging the area and leaving it unprotected, made himself amenable to Dwelly, he thereby, at most, only became a joint wrongdoer with Nerdlinger and Oppenheimer, who procured it to be dug, and were, therefore, alike bound to see that it was kept properly guarded. They might both have been liable to Dwelly, but, both being wrongdoers in pari delicto, neither would be liable to answer over to the other. It is well settled that one of several joint wrongdoers, against whom a recovery has been had, has no remedy against the others for contribution." The particular point thus determined was not adverted to in any of the later Indiana cases in which the decision has been cited.

As to right of a master to be indemnified by his servant, see Labatt, Mast. & S. § 2595. For a recent decision affirming that right, see Huey v. Dykes (1919) 203 Ala. 231, 82 So. 481.

2 This expression is used in Chesapeake & O. Canal Co. v. Allegany County (1881) 57 Md. 201, 40 Am. Rep. 430.

8 Rochester v. Montgomery (1876) 9 Hun (N. Y.) 394, affirmed in (1878) 72 N. Y. 67.

The rule as to indemnification "rests entirely upon the proposition that, as between two persons both of whom are liable to the injured party for damages, there is a primary and secondary liability, they not being joint tortfeasors and in pari delicto as to the wrong causing the injury." Sweet v. Atkinson (1921) 191 Iowa, 645, 182 N. W. 793.

negatived, wherever it appears that the party seeking indemnity was himself guilty of affirmative misconduct

In Northern Constr. Co. v. Johnson (1918) 132 Ark. 528, 201 S. W. 510, where the action was brought by a contractor against a subcontractor to recover the amount which the former had been compelled to pay for damage done to land by logs and brush which the defendant had thrown on to it, while he was clearing the right of way for a ditch, a demurrer to the complaint was held to have been properly sustained on the technical ground that "there was no allegation showing where, under the contract, the appellee was required to place the logs and brush as he removed or cleared the same from the right of way. For aught that appears to the contrary, the contract may have required the appellee, as he cleared the right of way, to deposit the logs and brush taken therefrom on adjacent lands belonging to the farmers." But it is not improbable that in some jurisdictions the circumstances thus adverted to would be regarded as insufficient ground for a demurrer.

In Pfau v. Williamson (1872) 63 Ill. 16, the jury were instructed that if they believed, from the evidence, that the dangerous excavation in question was made under the contract offered in evidence in this case, and by direction of plaintiff, then the plaintiff had no right to recover. Held, that this instruction was erroneous, as assuming that if the work was done under the contract and the direction of plaintiff there would be no liability. The court said: "We have seen that, if appellee was put in the possession and control of the premises, he would be liable for negligence. Had appellant given specific directions as to the manner of fencing, and those directions had been followed, then the instruction would have been proper; but we fail to find any such evidence in the record. And the jury would naturally infer that, as appellant had employed appellee to build the house, therefore the work was done under appellant's direction. If it was so understood by the jury, then they, as we have seen, were misled. No specific directions were given as to the mode of guarding persons passing along the street from injury, and, the contract being silent as to the mode, we fail to see any evidence upon which this instruc

which was a proximate cause of the injury in question. The plaintiff in an action against the contractor cantion could have been properly based, and we think it was well calculated to mislead the jury, and should have been refused."

In Arctic F. Ins. Co. v. Austin (1877) 69 N. Y. 470, 25 Am. Rep. 221, where the action was brought against the president of a towboat company to recover the amount which the plaintiff had paid as insurance on the cargo of a barge sunk in consequence of a collision, alleged to be due to the negligence of the crew of a tug, a new trial was ordered on the ground that the plaintiff could only recover upon proof that the loss was occasioned solely by the wrongful acts or the negligence or unskilfulness of those in charge of one or both of the steam tugs, without fault on the part of the master or crew of the tow, and that this question must be submitted to a jury.

In McCann v. Toronto (1897) 28 Ont. Rep. 650, a trapdoor left without fastenings in the roof of a city hall which had not yet been taken over from the contractors was blown off to the injury of a passer-by. In an action against the city, the contractors being brought in as parties, the jury found that the plaintiff had been injured by the negligence of the contractors in not securing the trapdoor, and also (in answer to a question) that the specifications were satisfied without the placing of fastenings on the trapdoor. Discussing the situation thus presented, Street, J., said: "The corporation have been made liable to pay damages because the jury have found that they did not stipulate that the work should be done in a safe manner. In now seeking to recover these damages over from the contractors they appear, from every point of view, to be confronted by a dilemma from which there seems no escape. If the finding of the jury was right, then the corporation cannot ask that the result of its own negligence should be visited upon the innocent contractors. If, on the other hand, the finding of the jury was wrong (as I think it was), and the accident was due to the negligence of the contractors, then I must hold that the corporation never was liable to the plaintiff at all, that the contractors alone are liable, and therefore that the corporation cannot re

not recover unless he shows that "the active negligence and wrong which caused the injury" in question were "the negligence and wrong of the defendant,"5 or, in other words, that the

cover over from them. I do not see that the covenant of the contractors contained in their contract with the corporation helps the latter out of this dilemma. It is an agreement by the contractors that they, and not the corporation, shall be responsible to third persons for injuries arising from causes which the contractors might have prevented, and does not add anything to the liability of the contractors existing without such a stipulationat all events, so far as the present case is concerned. There has been no breach of it, for the contractors have never been asked by any third person to pay any damages and they still remain technically liable to any third person who has been injured by their negligence." It seems probable that most American courts would have held the city liable, under the circumstances, on the ground of its being subject to a non-delegable duty in respect of protecting pedestrians against such injuries as that sustained by the plaintiff. In this point of view, an obligation of the contractors to indemnify the city would be clearly predicable.

In Quinlan v. Morrison (1913) Rap. Jud. Quebec 23, B. R. 481, an action in which a building contractor sought to recover damages in respect of defective work done by a subcontractor for the plastering was held not to be maintainable, because the defendant had notified the plaintiff that the plaster was too moist to be used, and had only used it on compulsion.

For other cases sustaining the statement in the text, see Moore v. Kopplin (1911) Tex. Civ. App. 135 S. W. 1033 (employer not entitled to recover if jury should find that the dangerous conditions which caused the injury were created in pursuance of orders given by his agent); Quanah, A. & P. R. Co. v. Goodwin (1915) Tex. Civ. App. 177 S. W. 545 (horse frightened by pile of rails at railroad crossing); Puyallup v. Vergowe (1917) 95 Wash. 320, 163 Pac. 779 (lights not maintained by city in street).

5 Scott v. Curtis (1909) 195 N. Y. 424, 40 L.R.A. (N.S.) 1147, 133 Am. St. Rep. 811, 88 N. E. 794, reversing

defendant was the party primarily liable for the wrongful act which occasioned the injury in respect of which the plaintiff has been compelled to pay damages.

(1908) 126 App. Div. 916, 110 N. Y. Supp. 1145.

In Sweet v. Atkinson (1921) 191 Iowa, 645, 182 N. W. 793, where the plaintiff had been compelled to pay damages for the death of a pedestrian, caused by the fall of a brick from the corner of a building, seven years after it had been completed by the defendant, it was held that a verdict should have been directed in favor of the latter.

In Pennsylvania Steel Co. v. Washington & B. Bridge Co. (1912) 194 Fed. 1011, a defective bridge pier built by the Elmore & Hamilton Contracting Company collapsed under the weight of the steel superstructure, while it was being placed upon the piers by the Pennsylvania Steel Company, under the supervision of the defendant's engineer, the result being that B., one of the employees of the steel company, was injured. In an action brought by the former company against the general contractor to recover the amount which the plaintiff had paid to its servant as compensation for his injury, a demurrer to the complaint was overruled by a district judge for reasons thus stated: "The question as to which party is primarily negligent must be carefully determined from the facts in each case. It by no means always follows that the owner, because he is having the work done, is so negligent. The contractor may, by his contract, be made wholly independent of the owner's control or direction; his personal act, without knowledge or consent of the owner, may be the direct cause of injury, a direct result of his want of care, proper qualifications, adequate knowledge of or failure to properly inspect the work, its conditions and surroundings, which he is undertaking to do. This case presents an illustration of the difficulty that may arise in so determining liability. It is insisted by defendant that there is no allegation that this pier 10 was unsafe because of improper workmanship or materials, but that it collapsed solely because the cement in it was not given time to harden. Counsel for plaintiff insist that, while this may be

Where the injured person sues in the same action both the contractor

true, the plaintiff, in seeking to erect the superstructure on it, was doing so under the direction of the defendant's engineer and agent. Per contra, counsel for defendant insist that this engineer was not its agent, but an independent contractor of it under the express terms of a contract existing between it and such engineer. Without expressing any opinion as to these contentions, it seems clear that the mere statement of them is sufficient to show that these questions are purely ones of fact, and cannot be determined upon demurrer, even under the terms of the stipulation filed."

In New York v. Brady (1893) 70 Hun, 250, 24 N. Y. Supp. 296, where the plaintiff city had been compelled to pay damages for an injury caused to one C., the record showed that a subdivision of the complaint filed by him in his action against the city alleged that N. & K. negligently left a pipe across the sidewalk, over which C. fell, and that another subdivision contained the allegation that the "city of New York and its servants, well knowing the premises, negligently left the said sidewalk in the dangerous condition aforesaid." It was held that the effect of these allegations was that the injury was occasioned by the concurring acts of the contractors and the city, and that the issue as to which of the parties was primarily liable, as between themselves, was not presented or tried. On the retrial the court refused to receive the evidence offered by the plaintiff for the purpose of establishing that, as between the city and N. & K., the latter were primarily liable for the injury sustained by C., and the judgment rendered in favor of the defendants was reversed for that reason (77 Hun, 241). On the third trial the evidence presented on the first trial was again introduced, and, in addition, it was shown by proof aliunde the record that the presence of the pipe, unprotected, upon the sidewalk, was litigated in the action brought by C., and constituted the subject-matter upon which he relied. Discussing the evidential situation which was thus presented, the supreme court (see (1894) 81 Hun, 440, 30 N. Y. Supp. 1121) made the following remarks: "The judgment roll, in connection with such proof, and the notice given to the contractor and

and the party indirectly liable, there seems to be no valid reason why the sureties to come in and defend that action, established: (1) That Cruikshank was injured by falling over the pipe; (2) that leaving the pipe in the situation in which it was, and without guard or protection, constituted negligence; (3) that Cruikshank was free from contributory negligence; and (4) that he was damaged in the amount for which he had recovery. On the question of primary liability the plaintiff proved that the pipe was put in the position in which it was at the time of the accident by the contractors, Nutt & Kearns. As this evidence was not disputed, there only remained the question whether the presence of the city's inspector at the time the pipe was laid, by virtue of his authority under the contract, made the act of laying the pipe in the manner in which it was done the city's act.

The evidence does not show that he was present and assented, but evidence tending in that direction was offered and excluded, and for convenience we shall treat the question as if such facts had been proved. The provision of the contract upon which defendants mainly found their contention is as follows: "The said commissioner of public works shall be and is hereby authorized to appoint such person or persons as he may deem proper to inspect the materials to be furnished and the work done under this agreement.' There are other provisions affecting the duties of the inspector and engineer, but they do not confer upon such employees the right to authorize or sanction the doing of a negligent or improper act by the contractors, while engaged in the performance of their contract. . But, assuming that the inspector or engineer could so far represent the city as to authorize the laying of the pipe across the walk, still the contractors were bound to guard it and do all things needful to save the public. from injury. If the right to lay the pipe was acquired by the action of the inspector and engineer it carried with it to the contractors the obligation to so protect and guard it as to warn passers-by, and thus save them from injury. Had the contractors performed their full duty by so guarding the pipe as to warn travelers of its presence on the walk, there could have been no recovery in the aetion of