(1882) 85 Ind. 384, where the tortfeasor was the agent of an abutter.

In Catterlin v. Frankfort (1881) 79 Ind. 547, 41 Am. Rep. 627, the law was thus laid down: "As there is no allegation in the complaint that the defendant had notice of the action of Kersey against the city, and an opportunity of defending it, his liability is not shown to be established by the judgment. In such case, in order to make the complaint good, it should at least show such a state of facts as would have made the defendant liable to Kersey, had the latter brought his action against the defendant instead of the city. This the complaint does not do. It does not allege in any manner that Kersey was free from negligence contributing to his injury. For this reason the complaint was insufficient." But it seems probable that the omission of averments as to such matters would not be deemed fatal under the more liberal systems of pleading.

For a succinct review of the cases relating to the conclusiveness of a judgment against a constructive tortfeasor in a subsequent action for contribution or indemnity, see note to Baltimore & O. R. Co. v. Howard County, 40 L.R.A. (N.S.) 1172.

2 In Rochester v. Montgomery (1878) 72 N. Y. 67, it was held that evidence offered for the purpose of proving that the injured person had been guilty of contributory negligence had been properly rejected, but that it was incumbent upon the plaintiff to prove that the obstruction which caused the damage was unlawfully placed in the street by the contractor, or his servants, or negligently left by him unguarded and without lights.

resulted from conditions for which the contractor was primarily responsible as a tort-feasor, that point remains open in the second action, and the production of affirmative evidence with regard to it is a prerequisite to the enforcement of the claim for indemnity.3

Supp. 1145, where the plaintiff had been adjudged responsible for an injury sustained by a pedestrian by falling into an open coalhole in a sidewalk, the following remarks were made: "It does not appear from the record how the accident occurred. If it occurred by the negligent and careless manner in which the defendants temporarily covered or guarded the coalhole it may be assumed that this action will lie. If, however, the injuries occurred by reason of the cover of the hole breaking, without any negligence or carelessness on the part of the defendants, or by reason of some carelessness of the plaintiff in this action, or by reason of some defect in the construction of the cover to such coalhole wholly independent of the temporary use thereof, the defendants are not liable. It may be assumed for the purpose of this opinion that notwithstanding the plaintiff's admission that he was liable in the action brought by the person who fell into the coalhole, nevertheless, the judgment roll establishes, as against the defendants herein, that the plaintiff therein was injured by reason of negligence in connection with the covering of said hole, and that no negligence of hers contributed to such injury, and that it also establishes the amount of her damages; but it was also incumbent upon the plaintiff to give evidence in addition to the judgment roll in that action to show that the accident occurred by negligence for which the defendants were primarily liable.

This

he wholly failed to do, and the judgment must, therefore, be reversed, with costs, and a new trial granted."

In New York v. Brady (1893) 70 Hun, 250, 24 N. Y. Supp. 296, where a new trial was ordered in an action brought by a city against a sewer contractor to recover the amount paid as damages to a pedestrian injured by falling over a pipe left unguarded on a sidewalk, the court made the following remarks: "When indemnity is sought by one who has been adjudged liable for damages arising from neg

ligence for which another, as between themselves, is primarily liable, the cases hold that the judgment is evidence in the action brought for indemnity, (1) that the defendant in the first action, plaintiff in the second, was liable for the damages, (2) when notice has been given to defend, of the amount of the damages arising from the injury, but it does not establish which of the wrongdoers is primarily liable. The reason of this is plain. The liability of the defendant in the first action, and the amount of damages sustained, were issues presented and determined; but which of the wrongdoers was primarily liable. is an issue not usually presented or determined in the action. Oceanic Steam Nav. Co. v. Compania Transatlantica Espanola (1892) 134 N. Y. 461, 30 Am. St. Rep. 685, 31 N. E. 987. Is there any provision in the contract which takes this case out of the general rule? It provides 'that they will indemnify and save harmless the parties of the first part (city) from all suits and actions of every name and description brought against them (city). The language quoted is part of subdivision H, which contains particular words limiting and controlling the general words, and makes it plain. that the contractors and their securities are not, by the terms of the contract, liable simply because a judgment has been recovered against the contractors. Sedgw. Stat. & Const. Law, 360." On the second appeal in (1894) 77 Hun, 241, 28 N. Y. Supp. 324, a new trial was ordered on account of the improper rejection of certain evidence. On a subsequent appeal in (1894) 81 Hun, 441, 30 N. Y. Supp. 1121, a verdict in favor of the plaintiff was upheld, and the judgment rendered was affirmed by the court of appeals in (1897) 151 N. Y. 611, 45 N. E. 1122.

In Pennsylvania R. Co. v. Roydhouse (1920) 267 Pa. 368, 110 Atl. 277 (for facts, see § 4, note 6, infra) the court thus commented on the circumstance that the subcontractors, who were directly responsible for the negligence which caused the accident, had been advised by the plaintiff that they would be held liable for it: "It was not an attempt to notify defendant, nor to charge defendant through its agents. However, plaintiff had every advantage of its position that the record was prima facie evidence. The case was submitted to the jury, and it was de

cided adversely to plaintiff's contention that defendant had not provided sufficient safeguards, or was careless in the construction of the work. It is now contended binding instructions should have been given for appellant. This was not possible. The record of the former trial was not conclusive. Admitting, for the purpose of this case, that it was prima facie evidence, it was only such as to the facts therein contained. The contractor was liable to the owner under the indemnity clause for the acts of the subcontractor, but it was not liable to third persons for injuries occasioned by the negligent acts of the same subcontractor. The owner, here plaintiff, recognized the subcontractor as doing the work from the notice it served. If it wished to affect the indemnitor, contractor, notice should have been given. When recovery was had, and this action was brought for recoupment, it must appear that the wrong complained of by the indemnitee was within the terms of the contract, as we have discussed them. This was not done by the record of the former trial alone. It showed certain facts-that Marie Brolasky was injured by the carelessness of the Pennsylvania Railroad Company's servants, who failed to maintain a safe station. The statement of claim in the present case, charging acts within the contract, was not self-proving. It required evidence to connect defendant with the wrong complained of within the terms of the contract. While the former trial showed an unsafe station, it was necessary in this case to show that it was unsafe because defendant, or its representatives, failed to provide proper, sufficient, and necessary safeguards, through which failure plaintiff was compelled to pay a sum of money for an accident occasioned thereby. Plaintiff, realizing this, offered evidence to bring the case within the terms of the contract, by showing the acts of the servants of Gray & Sons, the subcontractors, for whom defendant was liable. There was evidence from which the jury might have found either way, and their verdict was conclusive of the question."

In Chicago v. Robbins (1862) 2 Black (U. S.) 418, 17 L. ed. 298, s. c. on second appeal in (1867) 4 Wall. 657, 18 L. ed. 427, where the defendant was an abutting owner, it was held that he was not estopped from showing that he was under no obligation

§ 4. Extent of contractor's duty considered with reference to express agreements.

(As to the right of third persons to sue on indemnity agreements, see § 34 of the monograph appended to John P. Pettyjohn & Sons v. Basham, ante, 545).

The authorities reviewed in the preceding section show that the obligation of a contractor to indemnify the party indirectly liable for his tortious act is in no wise dependent on the existence of an express agreement.1 But to keep the street in a safe condition, and that it was not through his fault that the accident happened.

1It has been explicitly declared that "the absence of an indemnity bond is not a matter of controlling significance, since the law implies from the circumstances an agreement to indemnify." 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).

2 In Walton v. Cherokee Colliery Co. (1911) 70 W. Va. 48, 73 S. E. 63, a notice of recoupment, tendered in an action brought by a contractor for the balance of the compensation claimed to be due for work performed, alleged that plaintiff undertook to build a certain piece of railroad track and to construct a number of coke ovens for a fixed price; that the piece of railroad was to be built over certain premises belonging to the Ashland Coal & Coke Company; and that there was an express agreement between plaintiff and defendant to the effect that plaintiff was to perform the work of grading the railroad and building the coke ovens "without damaging or injuring in any manner or form the premises adjacent to and near by the lands on which said railroad and coke ovens were constructed, and were bound to save harmless this defendant from all damages or claims for damages on account of any and all injury and damage done to the property of third parties during the performance by said plaintiff of the said work." The notice also averred that the contractor in the course of the stipulated work inflicted upon the property of the Ashland Company various injuries, on account of which the colliery company, defendant, was

in all cases in which he has entered. into such an agreement, it obviously constitutes the determinant factor with regard to the nature and extent of his liability.2

In some of the cases in which a claim based on such an agreement was upheld, the ratio decidendi was that the claimant was not in pari delicto with the contractor in respect of the existence of the dangerous conditions which occasioned the injury complained of. In other cases the right of action was affirmed with refcompelled to pay a certain sum. Held, that the trial court had erred in rejecting this notice. The court said: "If the construction of the railroad and the building of the coke ovens in the present case necessitated the blasting of rock which would, within reasonable contemplation, subject the buildings of the Ashland Coal & Coke Company, situated near the work, to the risk of danger, defendant could not relieve itself from liability by employing plaintiff to do the work. In such case the plaintiff could make a binding contract of indemnity. Defendant had a right to prove that the work was of such character as would cause it to be primarily liable for injury to third parties from its performance, but the court, by rejecting its notice of recoupment, cut off its right to introduce evidence on the question.'" Defendant also had a right to prove that the promise of indemnity was supported by a valuable consideration, if such is the fact."

3 Lexington v. Etna Indemnity Co. (1911) 155 N. C. 219, 71 S. E. 214, where the contractor's sureties were required to indemnify a city which had paid compensation for an injury caused to a traveler by falling into an open trench left unguarded by the contractor.

In Ecuyer v. Benevolent Asso. (1922) 152 La. 74, 92 So. 739, where the wall of a building adjoining that which was being erected for the Benevolent Association collapsed by reason of the failure of the building contractor to carry out the specifications of his contract, the liability of the association for the injury was affirmed on the ground that it had reserved the right of inspection, for the purpose of ascertaining whether the requirements of the contract were being complied

erence to the particular terms of the agreement under review.4

The reader is referred to the principal case for a statement of the grounds upon which the court rejected the contention that an agreement of a subcontractor to indemnify the general contractor against all loss arising from any accident to any person by the operations of the former with respect to certain construction work was against public policy and void, as being an undertaking to indemnify the latter against loss by reason of his own violation of a statute which imwith by the contractor. But it was held to be entitled to enforce against its codefendant, the contractor, a stipulation by which the latter became bound to hold it harmless from all claims for damage to adjoining property.

In Polytechnic v. Redmon (1919) Tex. Civ. App. 217 S. W. 730, where a pedestrian who had been injured by falling into a hole created in a street by the crushing of a culvert under the wheels of a wagon, used by a contractor for the performance of work undertaken for a street railway company, recovered damages from the city. Held, that the city was entitled to recover from the contractor the amount paid by it as damages for the injury so sustained. The court

said: "It is not disputed that the work in which the traction company was engaged at the time was the work required under the terms of the franchise. The company was therein distinctly obligated to perform all work necessary in the construction or in the maintenance of its line of railway with as little inconvenience to the public as possible, . . . and to hold the city of Polytechnic harmless for any damage to property or injuries to persons which may arise by reason of the construction, maintenance, and operation of the said railroad within the corporate limits of said city.' In all events, as it seems to us, the destruction of the culvert arose 'by reason' of the traction company's construction and maintenance of its line of railway. The term, 'may arise by reason of,' as used in the franchise contract, properly interpreted, comprehends, we think, any damage which is occasioned in any necessary work of construction or maintenance which

posed similar obligations upon both parties with regard to the work in question.

$ 5. Same subject further discussed. In several cases in which the right of action was denied the ratio decidendi was that the injuries complained of were attributable to the fault of the employers, and that the agreements in question could not be construed as importing an intention on the part of the contractors to assume responsibility for injuries belonging to this category.1 The rationmay be undertaken by the traction company, and certainly the operations of the traction company at the time gave rise to and furnished the occasion for the injury done to the culvert, and resulted in an inconvenience and injury to a member of the public." In Turner v. Edmonton [1924] 2 D. L. R. 1081, Alberta, the occupant of a wagon was fatally injured, as a result of his being thrown out when the wheel sank into the defective filling of a trench excavated for a pipe line by a contractor who had expressly agreed to "assume all liability for and give the company a complete indemnity against all actions or suits arising out of or in connection with the carrying out of the works." He argued that the claim for indemnification was not within this covenant, because the accident did not occur from the doing of the work under the contract, but through the not doing of something which they did not bargain to do. But this contention did not prevail. The court said: "Turner's death arose out of the digging or refilling of this trench, and this action founded on that death therefore arises out of the carrying out of the works, which as defined by the contract means the works set out and described or implied in the specifications, and so includes the digging and refilling of the trenches. Under the broad language of this covenant I think that it covers this action. The work of construction was in progress when Turner was killed, and the system was not completed and turned over to or accepted by the company until sometime later."

1 In Ilford Gas Co. v. Ilford Urban Dist. Council (1903) 67 J. P. (Eng.) 365-C. A., a contract made with a dis

ale of the position taken in these cases has been thus explained. "We think trict council for the laying of sewers contained a stipulation that no alterations or omissions to or from the works should be made by the contractor, except such as were sanctioned by order, in writing, by the council. The contractor also agreed to indemnify the council for "all claims and actions for or in respect of any damage or injury to persons or property arising from or occasioned by the neglect, default, or misconduct of the contractor or of any person employed by the contractor or otherwise howsoever, from or by the execution of the works." In laying down the sewers the contractor came across a gas main at three different places, and received a written order to support it at each of those places by brick piers. Afterwards the main was found to be fractured at two of the three places where it was met with. In an action brought by the gas company against the council, the contractor being also made a party thereto by the direction of the trial judge, a verdict for the plaintiff was rendered, and the jury also found that there was no negligence on the part of the contractor. The question whether the contractor was liable to indemnify the council was by consent left to the judge, who held that there was such a liability. The case was taken to the court of appeal, which sent it down in order that a special jury should determine "whether the injury complained of [the subject of the plaintiff's claim] was due to the nature of the work which the third party, as contractor, was bound or directed to execute, or whether the injury was due to the mode in which the work was executed." The jury found that the injury was "due to the nature of the work," and on this finding the case again came before the court of appeal, which took the position that the consequence of the finding was to limit the discussion of the contractor's liability entirely to the question of the proper construction of the clause concerning indemnification, and that, in this point of view, the appeal of the contractor must be allowed. The opinion was expressed that (in the words of Romer, L. J.) the clause could not "reasonably be said to cover damage or injury arising solely from the nature of the works after they have been in all respects

it clear, on reason and authority, that a contract of indemnity against perduly, properly, and completely executed by the contractor, according to his contract." Both Vaughan Williams, L. J., and Stirling, L. J., rejected the contention mainly relied upon by the council, viz., that the words "execution of the works" should be construed as meaning "the fact of the works having been executed." It was held that the word "execution" meant "process of execution." The objection that the effect of such a construction would be to limit the responsibility of the contractor to his common-law liability for his own neglect, default, or misconduct was thus dealt with by Lord Justice Vaughan Williams: "I think what these words meant was thisthat during the execution of the works the contractor was to take upon himself the liability for any accidents which occurred during that period,that is, during the period of the works, -and there would be all sorts of liabilities which might arise to the contractor during the progress of the works without any neglect, default, or misconduct on his part, or on the part of his servant. I think not only that that was the intention with which these words were put in, but I think it was very reasonable to put them in. While the works are actually being executed the contractor is obviously the man who must have within his knowledge how everything happened, and it is only reasonable to say that the care of the works, and the responsibility for what happens during their execution, shall be thrown upon the contractor. But that is a very different thing from, on the one hand, saying the contractor nas only a common-law liability, or is only left liable for neglect or default, or, on the other hand, from saying that the contractor is to be responsible for everything that occurs, from the mere fact of the works having been executed in accordance with the prescribed plans; and, under those circumstances, it seems to me that the proper legal result in this case is to say that, as this particular damage resulted really merely from the existence of the works, the local authority are not entitled to any indemnity from their contractor in respect thereof. We have got a case in which there is a building owner and a contractor, and by the terms of the contract the contractor has to build