question of indemnification should not be adjusted in that action." But the case cited below is apparently an authority for a different rule.8

2. Classes of cases with respect to which this duty is predicable.

The liability of the contractor as indemnitor has been affirmed with respect to cases belonging to two categories:

(1) Cases in which the party in

Cruikshank against the city." The action brought by the city against. the contractors was accordingly held to be maintainable. The decision was affirmed without opinion in (1897) 151 N. Y. 611, 45 N. E. 1122.

7 A decision was rendered on this footing in Ecuyer v. Benevolent Asso. (1922) 152 La. 74, 92 So. 739.

In Gregg v. Wilmington (1911) 155 N. C. 18, 70 S. E. 1070, it was directed by the court, with reference to the new trial ordered, that the issues should be amended by submitting one as to the primary and secondary liability of the contractor and the city, as between themselves. It was added that, if the injured person had sued the city alone, a question might have arisen as to whether it would be proper to make the contractor a party, at the request of the city and against the plaintiff's consent, even if thereby the entire controversy could be settled in one action. But it is apprehended that in most jurisdictions there are specific rules of procedure which would require an affirmative answer to that question. See, for example, McCann v. Toronto (1897) 28 Ont. Rep. 650, note 4, supra.

8 In Georgetown v. Groff (1910) 136 Ky. 663, 124 S. W. 888, the right of a city to proceed by cross petition against a contractor was denied on the ground that it had not yet been compelled to respond in damages for the wrong. It seems permissible to feel a doubt as to the correctness of this ruling.

1 Scott v. Curtis (1909) 195 N. Y. 424, 40 L.R.A. (N.S.) 1147, 133 Am. St. Rep. 811, 88 N. E. 794, where it was laid down that "the liability of the owner of real property for injury to a passer-by for negligence in covering, or in failing to cover or guard, such a hole in a sidewalk does not relieve the active or actual wrongdoers from the consequences of their acts. The

directly liable was the contractee. "When an employee or independent contractor assumes the duty of performing an act which is dependent upon his personal care and attention, and an injury arises by reason of lack of such care and attention, such person is liable to the owner of the property, if he is called upon to pay and does pay the damages arising from such negligence."1 In one of the liability to the passer-by is joint. As between themselves, the active wrongdoer stands in the relation of an indemnitor to the person who has been held legally liable therefor."

In Pfau v. Williamson (1872) 63 Ill. 16, the right of action was thus discussed: Appellee "contracted to, and did, build the house and make this excavation, and if he failed, as required by the ordinance, to place a fence or obstruction around this excavation each night as prescribed by the ordinance, he violated a duty imposed by law. The duty was his, and not that of appellant; and if the duty was not observed, the violation was his and not appellant's. Notwithstanding this ordinance, and the fact that appellee had made the excavation, the court below, at the request of appellee, among a number of others, gave this instruction: "That if they believe, from the evidence, that the defendant did the work which he contracted to do for the plaintiff, in a skilful and workmanlike manner, and as he contracted to do it, that then the plaintiff cannot recover back from the defendant what he has had to pay on account of the injury sustained by Reynolds by falling into the excavation in the sidewalk, and they will find a verdict for the defendant.' This instruction wholly ignores the duty imposed on appellee to guard and protect the community against the danger of injury, by fencing, so as to protect persons from falling into the excavation. On the contrary, it defines appellee's duty, and his only duty in the premises, to be a skilful and workmanlike performance of the work he had agreed to execute. Under this instruction the jury could not have done otherwise than find the verdict they did. There seems to be no pretense that the work was not skilfully performed, and, even had it not been, that could in no wise have affected appel

cases belonging to this category the court rejected the contention that as lee's liability if he was negligent and failed to perform a duty which resulted in the loss appellant had been compelled to pay to Reynolds. Under this instruction it did not matter how careless or even reckless appellee may have been in failing to fence the excavation, if he performed the work on th house skilfully and constructed the cellar according to his agreement. Whether the excavation was properly guarded or not was by no means a question of skill and workmanship, but was a question of negligence or proper care. This instruction was calculated to mislead the jury and should not have been given."

In Georgetown v. Cantrill (1914) 158 Ky. 378, 164 S. W. 929, where a buggy had been overturned by a collision with a pile of logs, left unlighted in a street by one Donovan, while he was making repairs in pursuance of a contract with the city of Georgetown, the admitted facts showed that he piled the logs in the roadway without orders or directions from anybody else; that he refused to remove them from the street when notified so to do by the city authorities; that the owner of the abutting premises had never signified her objection to their removal except to the extent of asserting her ownership in them as against his; and that she had never directed him not to remove the posts back from the roadway to the gutter or pavement from which he had taken them. Held, that Donovan was liable for the amount of the damages which the city had been compelled to pay the injured driver of the buggy. The court said: "As between Mrs. Groff and the city, it was liable because of its failure to keep its streets in safe condition for travel; as between the city and Donovan, he is liable because of his failure to carry out his contract with the city, which thereby made the city liable to Mrs. Groff for the injury which she received."

In Chesapeake & O. Canal Co. v. Allegany County (1881) 57 Md. 201, 40 Am. Rep. 430, the commissioners of a county, having satisfied a judgment rendered against them in an action brought by one Eyler who had sustained an injury owing to the defective condition of a highway bridge over the Chesapeake & Ohio canal, were held to

"the nature of the work necessarily involved the creation of a dangerous

be entitled to recover from the canal company the amount so paid. One of the contentions advanced by the company was "that, even conceding the canal company was under obligation to keep the bridge in safe condition, the commissioners have no right of action over against the company, because this court in Eyler v. Allegany County (1878) 49 Md. 257, 33 Am. Rep. 249, decides that the law imposed upon the commissioners a primary and unqualified obligation, so far as the public is concerned, to maintain and keep the bridge in proper repair, and that by virtue of this responsibility, and from having neither compelled the canal company to make the bridge safe for travel or done so themselves, the appellee was in pari delicto with the company, and as a joint wrongdoer could not recover or have contribution from the company." But the court was of opinion that the case came directly within the scope of the decisions based upon the ground that a municipal corporation, "having the exclusive care and control of the streets, is obliged to see they are kept safe for the passage of persons and property, and is primarily liable to one who has been injured in consequence of default in this respect,

has

a clear remedy over against the party who has so used the street as to produce the injury."

In Dallas & G. R. Co. v. Able (1888) 72 Tex. 150, 9 S. W. 871, where the plaintiff was injured on a defective highway crossing while a railroad was in course of construction, the court, after discussing the effect of certain provisions of the construction contract with regard to the maintenance of such crossings, proceeded thus: "It was the duty of the contractors under their contract to keep this crossing in safe condition for public use, and if an injury resulted from their failure to do this, for which the railroad company was held responsible, they were liable to the company to make good the loss. The court did not err in so charging. It was immaterial whether under the contract O'Connor & Company were independent contractors or not. If not, they were liable to the company for damages recovered of it by reason of their own negligence. St. Paul Water Co. v. Ware (1873) 16 Wall. (U. S.) 566, 21 L. ed. 485. The

condition in the street, and the law consequently imposed upon the plaintiff the active duty of seeing to it that the street was kept reasonably safe by the maintenance of guards and lights, or otherwise, the judgment against the plaintiff is to be deemed

injury having been caused by the negligence of the contractors, they are primarily liable in any court, and, the company employing them being compelled to pay the damages, they become responsible to it for the amount."

In Alaska S. S. Co. v. Pacific Coast Gypsum Co. (1912) 71 Wash. 359, 128 Pac. 654, a steamship company which had settled a claim for damages in respect of injuries sustained by two longshoremen, its employees, owing to defects in a hoisting appliance furnished by a shipper, was held to be entitled to recover from the latter the sum so paid.

For other cases in which the employer's right to be indemnified was recognized, see Ilford Gas Co. v. Ilford Urban Dist. Council (1903) 67 J. P. (Eng.) 365-C. A. (where most of the discussion had reference to the effect of an express agreement as to indemnification. See § 40, note 1, infra); Hyman v. Waas (1906) 79 Conn. 251, 64 Atl. 354 (general rule taken for granted); Sweet v. Atkinson (1921) 191 Iowa, 644, 182 N. W. 793; Omaha v. Jensen (1892) 35 Neb. 68, 37 Am. St. Rep. 432, 52 N. W. 833; Rochester v. Montgomery (1878) 72 N. Y. 67, affirming (1878) 9 Hun, 394; Port Jervis v. First Nat. Bank (1884) 96 N. Y. 550, affirming (1883) 31 Hun, 107; Dunn v. Uvalde Asphalt Paving Co. (1903) 175 N. Y. 214, 67 N. E. 439; Phoenix Bridge Co. v. Creem (1905) 102 App. Div. 354, 92 N. Y. Supp. 855; Von Lengerke v. New York (1912) 150 App. Div. 98, 134 N. Y. Supp. 832, (affirmed in (1914) 211 N. Y. 558, 105 N. E. 1101, without opinion); Black Mountain R. Co. v. Ocean Acci. & G. Corp. (1916) 172 N. C. 636, 90 S. E. 763; O'Loughlin v. Jefferson County (1867) 56 Pa. 62; Kampmann v. Rothwell (1908) 101 Tex. 535, 17 L.R.A. (N.S.) 758, 109 S. W. 1089; Moore v. Kopplin (1911) Tex. Civ. App.

135 S. W. 1033.

In M'Intyre v. Gallacher (1883) 11 Sc. Sess. Cas. 4th series, 64, 21 Scot. L. R. 58, it was held that the proprietor of a building was entitled to maintain

as having been recovered because of its own neglect in that respect, thereby determining it to have been a participant in the defendants' wrong, and as such to be precluded from the right to indemnity in the absence of a contract therefor."2

an action against a plumber to recover the amount which the former had been compelled to pay a tenant as damages in respect of goods injured by reason of defective work performed by the defendant several years previously. But the question whether the tenant himself could have sued the plumber was not adverted to.

In Turner v. Edmonton [1924] 2 D. L. R. 1081, Alberta, —, it was held that a company, authorized to lay gas pipes in the streets of a city was entitled to be indemnified by a contractor for the amount which it had paid the city, in recoupment of the damages paid by the city to a traveler, as compensation for an injury resulting from a defect in a street for which the contractor was responsible.

Compare also Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola (1892) 134 N. Y. 461, 30 Am. St. Rep. 685, 31 N. E. 987, where the sublessee of a pier was required to indemnify the lessor for damages which the latter had been compelled to pay a stevedore for an injury caused by a defectively secured sliding door which fell on him.

2 Phoenix Bridge Co. v. Creem (1905) 102 App. Div. 354, 92 N. Y. Supp. 855 (affirmed without opinion in (1906) 185 N. Y. 580, 78 N. E. 1110). The following remarks were made: "While there are some expressions in opinions which may seem to give color to the contention stated, I think the general trend of the decisions is ad-· verse, and that the liability which results from the mere omission of a legal duty is to be distinguished, for the purposes of this case, from that which results from personal participation in an affirmative act of negligence or from a physical connection with an act of omission, by knowledge of, or aquiescence in, it on the part of the original contractor, or by his failure to perform some duty in connection with it which he may have undertaken by virtue of his agreement. In other words, while both the plaintiff and the defendants were equally culpable and equally liable to the traveling public

(2) Cases in which the party indirectly liable was not the contractee. In all the reported cases which belong to this category the claimant was a municipal corporation, seeking to recover the amount paid to a traveler as damages in respect of an injury resulting from dangerous conditions. created on a highway by a contractor not engaged in the performance of work for the corporation itself. The for the omission of duty which resulted in the injury, yet, as between themselves, the plaintiff was entitled to rely upon the defendants to discharge the duty because of their contractual relations, and the former could only be deprived of the right of indemnity by proof that it did in fact participate in some manner in the omission beyond its mere failure to perform the duty imposed on both by the law."

3 Port Jervis v. First Nat. Bank (1884) 96 N. Y. 550, affirming (1883) 31 Hun, 107.

In Rochester v. Campbell (1890) 123 N. Y. 405, 10 L.R.A. 393, 20 Am. St. Rep. 760, 25 N. E. 937, it was laid down, arguendo, that, "if a municipality has provided by contract with third persons for keeping its street in repair, and has been, through a neglect by such party to perform his contract, subjected to damages at the suit of an injured party, it may recover from such party the sum which it has been compelled to pay."

For other cases in which the liability of contractors as indemnitors has been affirmed with reference to the rule stated in the text, see Catterlin v. Frankfurt (1881) 79 Ind. 547, 41 Am. Rep. 627-citing Dill. Mun. Corp. 3d ed. § 1035 (5th ed. 1035); Robertson v. Paducah (1912) 146 Ky. 188, 40 L.R.A. (N.S.) 1153, 142 S. W. 370 (pedestrian fell into trench cut across sidewalk for lateral sewer); Harrodsburg v. Vanardsdall (1912) 148 Ky. 507, 147 S. W. 1; Louisville v. Nicholls (1914) 158 Ky. 516, 165 S. W. 660; New York v. Corn (1909) 133 App. Div. 1, 117 N. Y. Supp. 514; Gregg v. Wilmington (1911) 155 N. C. 18, 70 S. E. 1070; Corsicana v. Tobin (1900) 23 Tex. Civ. App. 492, 57 S. W. 319.

In Richmond v. Sitterding (1903) 101 Va. 354, 65 L.R.A. 445, 99 Am. St. Rep. 879, 43 S. E. 562, 13 Am. Neg. Rep. 616, a judgment in favor of the defendant was affirmed on the ground

general rule is "that a municipal corporation which has been compelled to pay a judgment recovered against it for damages sustained by an individual through an obstruction, defect, or excavation in the sidewalk or street of such corporation, has an action over against the person who negligently or unlawfully created the defect which causes the injury."

that he was not liable for the act of the actual tort-feasor.

"While the decisions are uniform that public necessity, and the nature of their obligations, require that municipal corporations should be held liable for the safety of their thoroughfares, the doctrine of pari delicto, though frequently invoked against them, has never been applied because of their constructive default when they have sought reimbursement from the actual authors of the trespass, or nuisance which has caused them to be sued." Chesapeake & O. Canal Co. v. Allegany (1881) 57 Md. 222, 40 Am. Rep. 230.

In Ottumwa v. Parks (1876) 43 Iowa, 119, where a city was held to be entitled to maintain an action for the amount which it had paid a traveler as damages in respect of an injury caused by a fall into a dangerous excavation which the defendant, an abutter, had made in a street for his private advantage, it was unsuccessfully contended that the city could not recover "because its mayor supervised the erection of guards, and thereby released him from that full care which the law would otherwise have required of him." The court said: "As the city was liable to any person who might be injured by reason of the excavation not being properly guarded, it was the right of the city to interfere and erect such guards or adopt such other precautionary measures, as it might deem proper. Now if the measures were such as to prevent the defendant from adopting other measures, he would not be liable to the city if they should prove to be insufficient. He would have no right to substitute his judgment for that of the city, and undo what the city did. We do not think, therefore, because the defendant adopted some precautionary measures, under the direction of the mayor, that he was relieved from the duty of

$ 3. Notice to contractor with regard to the pendency of action by injured per- ·

son.

The liability of the author of the act which occasioned the injury does not depend upon the fact of his receiving notice of the action brought by the injured person against the party indirectly liable for the injury, but "rests upon his original liability to all persons who may have suffered damages from his affirmative act of negligence." The only object of notice in such a case is to enable the party indirectly liable to avail himself of his "right to impose the burden of defense upon the party ultimately liable, and to estop the author of the injury by the judgment recovered, from again contesting the facts upon which

adopting such additional measures as the safety of travelers required."

Compare also Washington Gaslight Co. v. District of Columbia (1895) 161 U. S. 316, 40 L. ed. 712, 16 Sup. Ct. Rep. 564 (where it was held that the District of Columbia was entitled to recover from a gas company the amount paid as damages for an injury occasioned to a pedestrian by stepping into an uncovered gas box).

1 Port Jervis v. First Nat. Bank (1884) 96 N. Y. 550, affirming (1883) 31 Hun, 107. It was declared to be unnecessary that the contractor should have notice in writing, or even express notice, and that notice may be implied from his knowledge of the pendency of the action, and his participation in its defense.

"It is well settled that where an action for damages is brought against a party secondarily liable, and he gives notice of the pendency thereof to the person primarily liable for the damages claimed, informing him that he will look to him for contribution or reimbursement, and requesting that he make defense, a judgment rendered against the defendant is conclusive upon the party having the primary liability." Sweet v. Atkinson (1921) 191 Iowa, 645, 182 N. W. 793. That the giving of notice is not a condition precedent to recovery was also laid down in this case.

In Troy v. Troy & L. R. Co. (1872) 49 N. Y. 657, where a judgment was obtained against a city in an action brought to recover damages for injuries sustained in consequence of the

such judgment depends. The omission to give notice in such case does not go to the right of action, but simply changes the burden of proof, and imposes upon the party against whom the judgment was recovered the necessity of again litigating and establishing all of the actionable facts.

. But if the party who is ultimately responsible has notice of the pendency of an action against his indemnitee, and is given an opportunity to defend, and neglects it, he is still bound by the result of the action and estopped from controverting in an action subsequently brought against him by such indemnitee the facts which were litigated in the original action." In other words, he is confailure of a railroad company to comply with its contract to keep that portion of the street occupied by its track in good repair and safe for travel, the record of the judgment was held, in an action against it brought by the city, to be conclusive with regard to the liability of the company, and the amount the city was entitled to re

cover.

In New York v. Sicilian Asphalt Paving Co. (1911) 145 App. Div. 817, 130 N. Y. Supp. 468, where the complaint set forth the particulars of an injury received by one A., in consequence of the defective condition of a pavement, his subsequent action against the city for damages, notice to the contractor to come in and defend, its refusal to do so, and the recovery of a judgment by A., and its payment by the city, the court said: "If the defendant is liable over to the city, the judgment in the Antonucci case is, under the admissions implied by the demurrer, conclusive upon appellant as to the happening of the accident, the amount of damages, and the absence of contributory negligence on the part of the person injured." This point was not adverted to in the affirming judgment, reported in (1913) 208 N. Y. 45, 46 L.R.A. (N.S.) 893, 101 N. E. 696. See § 5, note 5, infra.

For cases in which the conclusiveness of the prior judgment was recognized with regard to actions brought by municipal corporations, see rodsburg v. Vanardsdall (1912) 148 Ky. 507, 147 S. W. 1, and Rochester v. Montgomery (1878) 72 N. Y. 65. Com

Har