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question of indemnification should not directly liable was the contractee. be adjusted in that action. But the "When an employee or independent case cited below is apparently an au- contractor assumes the duty of perthority for a different rule.8

forming an act which is dependent up§ 2. Classes of cases with respect to

on his personal care and attention, which this duty is predicable. and an injury arises by reason of lack The liability of the contractor as

of such care and attention, such perindemnitor has been affirmed with re- son is liable to the owner of the propspect to cases belonging to two cate- erty, if he is called upon to pay and gories:

does pay the damages arising from (1) Cases in which the party in- such negligence."1 In one of the Cruikshank against the city.” The liability to the passer-by is joint. As action brought by the city against. the between themselves, the active wrongcontractors was accordingly held to be doer stands in the relation of an inmaintainable. The decision was af- demnitor to the person who has been firmed without opinion in (1897) 151 held legally liable therefor.N. Y. 611, 45 N. E. 1122.

In Pfau v. Williamson (1872) 63 III. 7 A decision was rendered on this 16, the right of action was thus disfooting in Ecuyer v. Benevolent Asso. cussed: Appellee “contracted to, and (1922) 152 La. 74, 92 So. 739.

did, build the house and make this In Gregg v. Wilmington (1911) 155 excavation, and if he failed, as reN. C. 18, 70 S. E. 1070, it was directed quired by the ordinance, to place a by the court, with reference to the fence or obstruction around this ex

trial ordered, that the issues cavation each night as prescribed by should be amended by submitting one the ordinance, he violated a duty imas to the primary and secondary lia- posed by law. The duty was his, and bility of the contractor and the city, not that of appellant; and if the duty as between themselves. It was added was not observed, the violation was that, if the injured person had sued his and not appellant's. Notwiththe city alone, a question might have standing this ordinance, and the fact arisen as to whether it would be prop- that appellee had made the excavaer to make the contractor a party, at tion, the court below, at the request the request of the city and against the of appellee, among a number of others, plaintiff's consent, even if thereby the gave this instruction: “That if they entire controversy could be settled in believe, from the evidence, that the one action. But it is apprehended defendant did the work which he conthat in most jurisdictions there are tracted to do for the plaintiff, in a specific rules of procedure which skilful and workmanlike manner, and would require an affirmative answer to as he contracted to do it, that then the that question. See, for example, Mc- plaintiff cannot recover back from the Cann v. Toronto (1897) 28 Ont. Rep. defendant what he has had to pay on 650, note 4, supra.

account of the injury sustained by 8 In Georgetown v. Groff (1910) 136 Reynolds by falling into the excavaKy. 663, 124 S. W. 888, the right of a tion in the sidewalk, and they will find city to proceed by cross petition a verdict for the defendant.' This inagainst a contractor was denied on the struction wholly ignores the duty imground that it had not yet been com- posed on appellee to guard and propelled to respond in damages for the tect the community against the danger wrong. It seems permissible to feel a of injury, by fencing, so as to protect doubt as to the correctness of this persons from falling into the excavaruling.

tion. On the contrary, it defines ap1 Scott v. Curtis (1909) 195 N. Y. pellee's duty, and his only duty in the 424, 40 L.R.A.(N.S.) 1147, 133 Am. St. premises, to be a skilful and workmanRep. 811, 88 N. E. 794, where it was like performance of the work he had laid down that "the liability of the agreed to execute. Under this inowner of real property for injury to a struction the jury could not have done passer-by for negligence in covering, otherwise than find the verdict they or in failing to cover or guard, such did. There seems to be no pretense a hole in a sidewalk does not relieve that the work was not skilfully perthe active or actual wrongdoers from formed, and, even had it not been, that the consequences of their acts. The could in no wise have affected appel



cases belonging to this category the “the nature of the work necessarily court rejected the contention that as involved the creation of a dangerous lee's liability if he was negligent and be entitled to recover from the canal failed to perform a duty which result- company the amount so paid. One of ed in the loss appellant had been com- the contentions advanced by the compelled to pay to Reynolds. Under this

pany was "that, even conceding the instruction it did not matter how care- canal company was under obligation less or even reckless appellee may to keep the bridge in safe condition, have been in failing to fence the ex- the commissioners have no right of cavation, if he performed the work on action over against the company, beth house skilfully and constructed the cause this court in Eyler v. Allegany cellar according to his agreement. County (1878) 49 Md. 257, 33 Am. Rep. Whether the excavation was properly 249, decides that the law imposed guarded or not was by no means a upon the commissioners a primary and question of skill and workmanship, unqualified obligation, so far as the but was a question of negligence or public is concerned, to maintain and proper care. This instruction was keep the bridge in proper repair, and calculated to mislead the jury and that by virtue of this responsibility, should not have been given."

and from having neither compelled the In Georgetown v. Cantrill (1914) canal company to make the bridge safe 158 Ky. 378, 164 S. W. 929, where a for travel or done so themselves, the buggy had been overturned by a col- appellee was in pari delicto with the lision with a pile of logs, left un- company, and as a joint wrongdoer lighted in a street by one Donovan, could not recover or have contribution while he was making repairs in pur- from the company." But the court suance of a contract with the city was of opinion that the case came of Georgetown, the admitted facts directly within the scope of the decishowed that he piled the logs in the sions based upon the ground that a roadway without orders or directions municipal corporation, "having the from anybody else; that he refused to exclusive care and control of the remove them from the street when streets, is obliged to see they are kept notified so to do by the city authori- safe for the passage of persons and ties; that the owner of the abutting property, and is primarily liable to one premises had never signified her who has been injured in consequence objection to their removal except to of default in this respect,

has the extent of asserting her ownership a clear remedy over against the party in them as against his; and that she who has so used the street as to prohad never directed him not to remove duce the injury.” the posts back from the roadway to the In Dallas & G. R. Co. v. Able (1888) gutter or pavement from which he had 72 Tex. 150, 9 S. W. 871, where the taken them. Held, that Donovan was plaintiff was injured on a defective liable for the amount of the damages highway crossing while a railroad was which the city had been compelled to in course of construction, the court, pay the injured driver of the buggy. after discussing the effect of certain The court said: “As between Mrs. provisions of the construction conGroff and the city, it was liable be- tract with regard to the maintenance cause of its failure to keep its streets of such crossings, proceeded thus: “It in safe condition for travel; as be- was the duty of the contractors under tween the city and Donovan, he is their contract to keep this crossing in liable because of his failure to carry safe condition for public use, and if an out his contract with the city, which injury resulted from their failure to thereby made the city liable to Mrs. do this, for which the railroad comGroff for the injury which she re- pany was held responsible, they were ceived."

liable to the company to make good the In Chesapeake & 0. Canal Co. v. loss. The court did not err in so Allegany County (1881) 57 Md. 201, charging. It was immaterial whether 40 Am. Rep. 430, the commissioners of under the contract O'Connor & Coma county, having satisfied a judgment pany were independent contractors or rendered against_them in an action not. If not, they were liable to the brought by one Eyler who had sus- company for damages recovered of it tained an injury owing to the defective by reason of their own negligence. St. condition of a highway bridge over the Paul Water Co. v. Ware (1873) 16 Chesapeake & Ohio canal, were held to Wall. (U. S.) 566, 21 L. ed. 485. The


condition in the street, and the law as having been recovered because of consequently imposed upon the plain- its own neglect in that respect, theretiff the active duty of seeing to it that by determining it to have been a parthe street was kept reasonably safe ticipant in the defendants' wrong, by the maintenance of guards and and as such to be precluded from the lights, or otherwise, the judgment right to indemnity in the absence of a against the plaintiff is to be deemed contract therefor."2 injury having been caused by the an action against a plumber to recover negligence of the contractors, they the amount which the former had been are primarily liable in any court, and, compelled to pay a tenant as damages the company employing them being in respect of goods injured by reason compelled to pay the damages, they of defective work performed by the become responsible to it for the defendant several years previously. amount."

But the question whether the tenant In Alaska S. S. Co. v. Pacific Coast himself could have sued the plumber Gypsum Co. (1912) 71 Wash. 359, 128 was not adverted to. Pac. 654, a steamship company which In Turner v. Edmonton (1924] 2 D. had settled a claim for damages in L. R. 1081, — Alberta,

-, it was held respect of injuries sustained by two that a company, authorized to lay gas longshoremen, its employees, owing to pipes in the streets of a city was endefects in a hoisting appliance fur- titled to be indemnified by a contracnished by a shipper, was held to be tor for the amount which it had paid entitled to recover from the latter the

the city, in recoupment of the damsum so paid.

ages paid by the city to a traveler, as For other cases in which the em- compensation for an injury resulting ployer's right to be indemnified was from a defect in a street for which the recognized, see Ilford Gas Co. v. Ilford

contractor was responsible. Urban Dist. Council (1903) 67 J. P. Compare also Oceanic Steam Nav. (Eng.) 365—C. A. (where most of the Co. v. Compania Transatlantica Esdiscussion had reference to the effect

panola (1892) 134 N. Y. 461, 30 Am. of an express agreement as to indem

St. Rep. 685, 31 N. E. 987, where the nification. See $ 40, note 1, infra); sublessee of a pier was required to inHyman v. Waas (1906) 79 Conn. 251, demnify the lessor for damages which 64 Atl. 354 (general rule taken for the latter had been compelled to pay granted); Sweet v. Atkinson (1921) a stevedore for an injury caused by a 191 Iowa, 644, 182 N. W. 793; Omaha defectively secured sliding door which v. Jensen (1892) 35 Neb. 68, 37 Am. fell on him. St. Rep. 432, 52 N. W. 833; Rochester 2 Phænix Bridge Co. v. Creem (1905) V. Montgomery (1878) 72 N. Y. 67, 102 App. Div. 354, 92 N. Y. Supp. affirming (1878) 9 Hun, 394; Port 855 (affirmed without opinion in Jervis v. First Nat. Bank (1884) 96 (1906) 185 N. Y. 580, 78 N. E. 1110). N. Y. 550, affirming (1883) 31 Hun, The following remarks were made: 107; Dunn v. Uvalde Asphalt Paving “While there are some expressions in Co. (1903) 175 N. Y. 214, 67 N. E. 439; opinions which may seem to give color Phenix Bridge Co. v. Creem (1905) to the contention stated, I think the 102 App. Div. 354, 92 N. Y. Supp. 855; general trend of the decisions is adVon Lengerke v. New York (1912) 150 verse, and that the liability which reApp. Div. 98, 134 N. Y. Supp. 832, sults from the mere omission of a legal (affirmed in (1914) 211 N. Y. 558, 105 duty is to be distinguished, for the N. E. 1101, without opinion); Black purposes of this case, from that which Mountain R. Co. v. Ocean Acci. & G. results from personal participation in Corp. (1916) 172 N. C. 636, 90 S. E. an affirmative act of negligence or 763; O'Loughlin v. Jefferson County from a physical connection with an (1867) 56 Pa. 62; Kampmann v. Roth- act of omission, by knowledge of, or well (1908) 101 Tex. 535, 17 L.R.A. aquiescence in, it on the part of the (N.S.) 758, 109 S. W. 1089; Moore v. original contractor, or by his failure Kopplin (1911) Tex. Civ. App. to perform some duty in connection 135 S. W. 1033.

with it which he may have undertaken In M’Intyre v. Gallacher (1883) 11 by virtue of his agreement. In other Sc. Sess. Cas. 4th series, 64, 21 Scot. words, while both the plaintiff and the L. R. 58, it was held that the proprietor defendants were equally culpable and of a building was entitled to maintain equally liable to the traveling public

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(2) Cases in which the party in- . general rule is "that a municipal cordirectly liable was not the contractee. poration which has been compelled to In all the reported cases which be

pay a judgment recovered against it long to this category the claimant was a municipal corporation, seeking to

for damages sustained by an individrecover the amount paid to a traveler

ual through an obstruction, defect, or as damages in respect of an injury

excavation in the sidewalk or street of resulting from dangerous conditions

such corporation, has an action over created on a highway by a contractor against the person who negligently or not engaged in the performance of unlawfully created the defect which work for the corporation itself. The causes the injury." for the omission of duty which result- that he was not liable for the act of ed in the injury, yet, as between them- the actual tort-feasor. selves, the plaintiff was entitled to “While the decisions are uniform rely upon the defendants to discharge that public necessity, and the nature the duty because of their contractual of their obligations, require that murelations, and the former could only nicipal corporations should be held be deprived of the right of indemnity liable for the safety of their thoroughby proof that it did in fact participate fares, the doctrine of pari delicto, in some manner in the omission be- though frequently invoked against yond its mere failure to perform the them, has never been applied because duty imposed on both by the law." of their constructive default when

3 Port Jervis V. First Nat. Bank they have sought reimbursement from (1884) 96 N. Y. 550, affirming (1883) the actual authors of the trespass, or 31 Hun, 107.

nuisance which has caused them to be In Rochester v. Campbell (1890) 123 sued.” Chesapeake & O. Canal Co. v. N. Y. 405, 10 L.R.A. 393, 20 Am. St. Allegany (1881). 57 Md. 222, 40 Am. Rep. 760, 25 N. E. 937, it was laid Rep. 230. down, arguendo, that, “if a municipal- In Ottumwa v. Parks (1876) 43 ity has provided by contract with third lowa, 119, where a city was held to persons for keeping its street in re- be entitled to maintain an action for pair, and has been through a neglect the amount which it had paid a by such party to perform his contract, traveler as damages in respect of an subjected to damages at the suit of an injury caused by a fall into a dangerinjured party, it may recover from ous excavation which the defendant, such party the sum which it has been an abutter, had made in a street for compelled to pay.”

his private advantage, it was unsucFor other cases in which the liabil- cessfully contended that the city could ity, of contractors as indemnitors has not recover “because its mayor superbeen affirmed with reference to the vised the erection of guards, and thererule stated in the text, see Catterlin v. by released him from that full care Frankfurt (1881) 79 Ind. 547, 41 Am. which the law would otherwise have Rep. 627-citing Dill. Mun. Corp. 3d required of him." The court said: ed. § 1035 (5th ed. 1035); Robertson v. “As the city was liable to any person Paducah (1912) 146 Ky. 188, L.R.A. who might be injured by reason of the (N.S.) 1153, 142 S. W. 370 (pedestrian excavation not being properly guardfell into trench cut across sidewalk ed, it was the right of the city to interfor lateral sewer); Harrodsburg v. fere and erect such guards or adopt Vanardsdall (1912) 148 Ky. 507, 147 such other precautionary measures, as S. W. 1.; Louisville v. Nicholls (1914) it might deem proper.

Now if the 158 Ky. 516, 165 S. W. 660; New York measures were such as to prevent the V. Corn (1909) 133 App. Div. 1, 117 defendant from adopting other measN. Y. Supp. 514; Gregg v. Wilmington ures, he would not be liable to the city (1911) 155 N. C. 18, 70 S. E. 1070; if they should prove to be insufficient. Corsicana v. Tobin (1900) 23 Tex. Civ. He would have no right to substitute App. 492, 57 S. W. 319.

his judgment for that of the city, and In Richmond v. Sitterding (1903) undo what the city did. We do not 101 Va. 354, 65 L.R.A. 445, 99 Am. St. think, therefore, because the defendRep. 879, 43 S. E. 562, 13 Am. Neg. ant adopted some precautionary measRep. 616, a judgment in favor of the ures, under the direction of the mayor, defendant was affirmed on the ground that he was relieved from the duty of



$ 3. Notice to contractor with regard to such judgment depends. The omission the pendency of action by injured per.' to give notice in such case does not go

to the right of action, but simply The liability of the author of the changes the burden of proof, and imact which occasioned the injury does poses upon the party against whom not depend upon the fact of his re- the judgment was recovered the neceiving notice of the action brought cessity of again litigating and estabby the injured person against the lishing all of the actionable facts. party indirectly liable for the injury,

But if the party who is ulbut “rests upon his original liability timately responsible has notice of the to all persons who may have suffered pendency of an action against his indamages from his affirmative act of

demnitee, and is given an opportunity negligence." The only object of no

to defend, and neglects it, he is still tice in such a case is to enable the

bound by the result of the action and party indirectly liable to avail himself of his “right to impose the burden of

estopped from controverting in an acdefense upon the party ultimately lia

tion subsequently brought against ble, and to estop the author of the in

him by such indemnitee the facts jury by the judgment recovered, from which were litigated in the original again contesting the facts upon which action."1 In other words, he is conadopting such additional measures as failure of a railroad company to comthe safety of travelers required." ply with its contract to keep that por

Compare also Washington Gaslight tion of the street occupied by its track Co. v. District of Columbia (1895) 161 in good repair and safe for travel, the U. S. 316, 40 L. ed. 712, 16 Sup. Ct. record of the judgment was held, in Rep. 564 (where it was held that the an action against it brought by the District of Columbia was entitled to city, to be conclusive with regard to recover from

gas company the the liability of the company, and the amount paid as damages for an injury amount the city was entitled to reoccasioned to a pedestrian by stepping cover. into an uncovered gas box).

In New York v. Sicilian Asphalt 1 Port Jervis V. First Nat. Bank Paving Co. (1911) 145 App. Div. 817, (1884) 96 N. Y. 550, affirming (1883) 130 N. Y. Supp. 468, where the com31 Hun, 107. It was declared to be plaint set forth the particulars of an unnecessary that the contractor should injury received by one A., in consehave notice in writing, or even express quence of the defective condition of notice, and that notice may be implied a pavement, his subsequent action from his knowledge of the pendency against the city for damages, notice of the action, and his participation in to the contractor to come in and deits defense.

fend, its refusal to do so, and the re"It is well settled that where an ac- covery of a judgment by A., and its tion for damages is brought against payment by the city, the court said: a party secondarily liable, and he "If the defendant is liable over to the gives notice of the pendency thereof city, the judgment in the Antonucci to the person primarily liable for the case is, under the admissions implied damages claimed, informing him that by the demurrer, conclusive upon aphe will look to him for contribution or pellant as to the happening of the acreimbursement, and requesting that he cident, the amount of damages, and make defense, a judgment rendered the absence of contributory negligence against the defendant is conclusive on the part of the person injured." upon the party having the primary This point was not adverted to in the liability." "Sweet v. Atkinson (1921) affirming judgment, reported in (1913) 191 Iowa, 645, 182 N. W. 793. That the 208 N. Y. 45, 46 L.R.A.(N.S.) 893, 101 giving of notice is not a condition

N. E. 696. See § 5, note 5, infra. precedent to recovery was also laid For cases in which the conclusivedown in this case.

ness of the prior judgment was recogIn Troy v. Troy & L. R. Co. (1872) nized with regard to actions brought 49 N. Y. 657, where a judgment was by municipal corporations, see Harobtained against a city in an action rodsburg v. Vanardsdall_(1912) 148 brought to recover damages for in- Ky. 507, 147 S. W. 1, and Rochester v. juries sustained in consequence of the Montgomery (1878) 72 N. Y. 65. Com

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