217 Pa. 252 | Pa. | 1907
Opinion by
By a contract in writing dated October 21, 1902, George F. Payne & Co., the defendants, agreed to erect for Edward Perry, the plaintiff and owner of the premises, a building at the southeast corner of Sixteenth and Chestnut streets; and if the site was delivered to them by a certain date they agreed to deliver the finished building to the plaintiff on December 15, 1903. By the terms of the contract Payne & Company promised to execute and deliver to Perry a bond in the sum of $140,000, indemnifying him, inter alia, “ from all loss, cost or expense .... arising from accidents to mechanics or laborers employed in the construction of said work, or to persons passing where the work is being constructed: ” and in pursuance thereof the defendants gave' their bond to Perry conditioned, inter alia, that they “ shall protect and keep harmless the said Edward Perry of and from all loss, costs and damages, for non-fulfillment of same, or b}^ reason of any liens, claims or demands for material for labor furnished for the construction of said work, or from damages arising from accidents to persons employed in the construction of, or passing near the said work, or for damages done to adjacent properties by reason of the construction of said work, or by depositing material in such a manner as to damage either the city or the individual.”
Payne & Company entered upon their work, but failed to complete it within the specified time. The time limit was waived by mutual consent, and as certain parts of the building
This is an action of assumpsit brought by Perry against Payne & Company on the bond of indemnity. The learned trial judge in the court below held that under the facts of the
The learned counsel for the plaintiff concedes that at the time of the accident the elevator was being operated by a servant .of the plaintiff for whose negligent act, resulting in the death of Lynch, the plaintiff was responsible. This admission was fully justified by the evidence, as well as by the judgment obtained against Perry. He claims, however, that the court below made an unwarranted distinction in holding that the servant, operating the elevator, might have been regarded as being in the employment of the defendants while the painters were on the top of the elevator and using it as a staging for painting, but that after they left the top of the elevator and began painting under it at the bottom of the shaft, the servant was then in the employ of the plaintiff and the elevator was under the management and control of the plaintiff. We do not think the counsel’s position is well taken. From the facts, which are stated above, it is clear that whatever doubt may exist as to who was the employer of the boy — Perry or Payne & Company — while the painters were using the top of the elevator as a staging, or who, during that time, was in control of the elevator, there can be no question that after the painters had left the elevator and resumed their work at the bottom of the shaft, the boy was Perry’s servant and as such was in control of and operating the elevator. As we have seen, at the time Perry gave permission to Payne & Company to use the elevator, he was in the exclusive control and management of it, and he consented to its use by them for staging purposes only, and when it was no longer needed for that purpose, Perry, through his servant, resumed the use of it for his own purpose. The painters did not need it while painting at the bottom of the shaft, and it had to be hoisted above the unpainted portion of the side of the shaft before they could do that part of the \york. Having served the purpose for which the contractors had procured it from Perry, the owner of the building then continued to use the elevator in his own business when, by a negligent act of his servant in operating it, it caused the injury resulting in Lynch’s death.
The principal and controlling question in the case depends
We cannot assent to this construction of the bond. It ignores the well-established rules applicable to the construction of such instruments, and results, as we think, in imposing a liability on the contractors which was not contemplated by the parties. In construing the instrument, it is our duty to ascertain the intention of the parties, and in doing so we are not confined to the language used, but may consider the circumstances surrounding the parties and their object in making the instrument. The nature of the duty of the obligor and the character of the obligee will be regarded as explanatory of the intent of the parties: Strawbridge v. Railroad Co., 14 Md. 860. Here the obligors were the contractors for the erection of the building, and by their contract they agreed “ to furnish all the materials for, and to build, construct and finish complete in every respect, ready for use, a building,” within a stipulated time. This necessitated their being in possession of the premises during the time required for the construction of the building, and the plaintiff desired to relieve himself from any liability or from any litigation arising out of a supposed liability for any act done during the progress or the continuance of the work by the contractors. Hence the indemnification clause of the contract and the bond. But against whose
It is contrary to experience and against reason that the contractors should agree to indemnify Perry against the negligence of himself or his employees. It would make them insurers, and impose a liability upon the contractors, the extent of which would be uncertain and indefinite, and entirely in the hands of Perry. The results of such a liability might become most disastrous. While the consideration named in the contract for the construction of the building and indemnifying the owner was large, yet it was wholly inadequate to justify the contractors in assuming liability for his negligence in view of the responsibility in constructing the building. The profits to be realized on the contract were entirely too small to warrant the contractors in agreeing to assume a liability of such great proportions and of such unlimited extent. A single act of negligence on the part of the owner or his employees, over whom the contractors would have no restraint or control whatever, might create a liability which a lifetime of successful business could not repay. An interpretation of the bond which might give rise to such results could hardly be regarded as reasonable or as giving effect to the intention of the parties.
The question presented here has not arisen or been determined in any of the reported decisions of this court. In other jurisdictions, however, the inclination is decidedly against construing a contract of this character as indemnifying the indemnitee against his own negligence; and it is there held that a contract will not be so construed unless express language requires it. In Mynard, etc., v. Syracuse, etc., R. R. Co., 71 N. Y. 180, it is held that “ every presumption is against an intention to contract for immunity for not exercising ordinary diligence in the transaction of any business, and hence the general rule is that contracts will not be so construed unless expressed in unequivocal terms.” In Mitchell v. Southern Ry. Co., 24 Ky. L. Repr. 2388, Mr. Justice Paynter, speaking for the court, says: “ If a doubt existed as to its (clause of indemnity) meaning, the court would resolve that doubt against the contention
In Manhattan Ry. Co. v. Cornell, 54 Hun, 292, affirmed by the court of appeals of New York, 130 N. Y. 637, a contractor, employed to construct an extension to the station platform of a railway, indemnified the railway company against “ all loss, cost or damage .... from any damages arising from injuries sustained by mechanics, laborers or other persons, by reason of accident or otherwise.” During the progress of the work a laborer in the employ of the contractor was killed by an engine of the railway company for which the widow of the laborer recovered damages against the company. Suit was then brought by the company against the contractor on his indemnity contract, but it was held that the contract did not indemnify the company against the negligence of its employees. In the opinion of the court it is said: “ For, while the language of this part of the contract is very general, it cannot reasonably be so construed as to impose upon the contractors the obligation to protect the plaintiff against the carelessness or negligence of persons in its own employment. "What the party designed and intended by this part of the agreement was to indemnify the plaintiff against liability for any damages or injuries that might be sustained by persons in the employment of the contractors in the progress and execution of their work. . . . There was no relation whatever existing between them (employees of the railway company) and the contractors, and it is not reasonable to suppose that in the use of this language, either the plaintiff or the contractors intended or understood the latter to be obligated to indemnify the plaintiff against the carelessness or misconduct of its own servants or employees.”
In Johnson v. Richmond and Danville R. R. Co., 86 Va. 975, the contract provided that a railroad company should not be responsible for any injuries to or death of any member of a firm which had contracted to construct some work for the
The only case cited by the learned counsel of the plaintiff in support of his position and the one which he contends rules the present case in favor of his client is Woodbury v. Post, 158 Mass. 140. We think, however, that the reasoning of the court there is against the plaintiff’s construction of the contract in our case. There is a clear distinction between the contracts in the two cases, and the Woodbury case was ruled in favor of the indemnitee on the ground that the terms of the contract specifically provided indemnity against his own negligence. The letters passing between the parties constituted the contract. The indemnitee’s letter contained the following proposition which was accepted by the indemnitor: “ If any injury shall be occasioned to any person or property while you are using such engines or derricks, or as a result of such use, you are to indemnify us against any damage or expense by reason of the same, notwithstanding the condition of the engine, derrick, or appliances, or the negligence of our employees upon the derrick or engine, may have caused or contributed to the injury.” Two of the indemnitee’s employees wore injured by the defec
We think it clear, on reason and authority, that a contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. The liability on such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assmne the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it. The manifest purpose, in such cases, to indemnify against the injury which, under the circumstances, could reasonably be
The assignment of error is overruled, and the judgment is affirmed.