Woodbury v. Post

| Mass. | Jan 19, 1893

Barker, J.

1. We construe the .defendants’ undertaking to be that they should indemnify the plaintiffs against any damage or expense resulting to them by reason of any injury to any person or property while the defendants were using the engines and derricks, as well as against any damage or expense which should be the result of such use. The clause “ notwithstanding the condition of the engine, derrick, or appliances, or the negligence of our [plaintiffs’] employees upon the derrick or engine, may have caused or contributed to the injury,” does not limit the indemnity to damages and expenses caused by the condition of the engine, derrick, and appliances, or the negligence of those employed upon the derrick or engine. Its purpose and effect were to make it clear that those circumstances, which if no such clause had been inserted might have been claimed to defeat the right to indemnity, were not to impair the plaintiffs’ right. The clause negatives possible exceptions which might in effect be read into the contract by the application of principles of law, unless the parties made it certain that indemnity from the result of all injuries, however occurring, was expressly stipulated. This construction of the contract disposes of the second and third causes of demurrer, which proceed upon the theory that the defendants did not undertake to indemnify the plaintiffs against injuries resulting from their own negligence, or that of any of their servants except those employed upon the derrick or engine. The contract is like one of insurance, and the doctrines applied in actions for negligence have no further application than in determining whether a liability of the plaintiff to the persons injured is well pleaded.

2. Bach count states substantive facts which show that the plaintiffs sustained damage for which the defendants agreed to indemnify them, and that the defendants have broken the contract. In the first count there are allegations well pleaded that injuries were occasioned to persons named while the defendants were using one of the derricks, and substantive facts are stated which show that the plaintiffs were liable to those persons for the injuries so sustained, so that it is unnecessary to consider whether the allegation “ that the plaintiffs were legally liable to said injured parties for all injuries sustained by them as aforesaid ” may not be treated as a statement of a fact, rather than as a conclusion of law. These facts, from the proof of which the liability of the plaintiffs to the injured persons follows, are that they were employees of the plaintiffs engaged in work in the course of their employment; that they were injured by the breaking of the derrick and its appliances; that they were in • the exercise of due care; that the breaking was due to the unsafe and defective condition of the derrick and appliances; that the persons injured did not know, and in the exercise of due care would not have known, and that the plaintiffs knew or ought in the exercise of due care to have known, this unsafe and defective condition ; that the plaintiffs knew or ought to have known that the use of the derrick would cause injury to persons working near it,-and negligently and without warning ordered and allowed the injured persons to work in a place dangerous because of the unsafe and defective condition of the derrick and its appliances. These facts show a liability at common law to the persons injured. In the second count, similar allegations, substituting the knowledge and negligence of the plaintiffs’ superintendent for that of the plaintiffs themselves, show a statutory liability. Even if for the time being the derrick and its appliances were not tools or machinery of the plaintiffs, because in use by the defendants, enough is stated in each count to show a liability of the plaintiffs to the persons injured, because a breach of their duty to use due care to furnish their employees a reasonably safe place in which to work is well pleaded.

3. The second count is not open to demurrer for not stating the name of the superintendent. The substantive facts to be pleaded were that a person in the plaintiffs’ service, intrusted with and exercising superintendence, whose sole or principal duty was that of superintendence, knew, or was negligent; his name was immaterial, and was not, in the connection in which the allegation stood, essential to the substantial certainty of the facts alleged. Judgment set aside. Demurrer overruled.