U.S. Fid. & Guar. Co. v. Thomlinson Co.
Citation | 172 Or. 307,141 P.2d 817 |
Parties | UNITED STATES FIDELITY & GUARANTY CO. ET AL. <I>v.</I> THOMLINSON-ARKWRIGHT CO ET AL. |
Decision Date | 13 October 1943 |
Court | Supreme Court of Oregon |
Contractor as indemnitee, note, 12 A.L.R. 1411. See, also, 21 R.C.L. 978 17 C.J.S., Contracts, § 313
Before BAILEY, Chief Justice, and BELT, ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.
Appeal from Circuit Court, Multnomah County.
Action by the United States Fidelity & Guaranty Company and another against Thomlinson-Arkwright Company and the Occidental Indemnity Company to recover on a subcontractor's bond executed by first-named defendant in favor of Warren Northwest, Inc., to which the plaintiffs had issued public liability policies. From an adverse judgment, plaintiffs appeal.
REVERSED.
David Sandeberg, of Portland, (Sheppard & Phillips, of Portland, on the brief) for appellants.
John Lichty, of Portland (Robert Clapperton, of Portland, on the brief) for respondent.
This is an action on a bond which was executed by the Thomlinson-Arkwright Company, as principal, and the Occidental Indemnity Company, as surety, in favor of Warren Northwest, Inc. The plaintiffs are the United States Fidelity and Guaranty Company and the General Casualty Company of America, who claim to be subrogated to the rights of the Warren Company on the bond and against the surety thereon. The principal on the bond was never served, and the cause against the Occidental Indemnity Company went to trial before the court without a jury upon stipulated facts, no testimony being taken. Judgment was entered for the answering defendant. The plaintiffs appeal.
We shall refer to the plaintiffs as the U.S.F. & G. Company and the General Casualty Company, respectively to Warren Northwest, Inc., as the Warren Company or the general contractor, to the Thomlinson-Arkwright Company as the Thomlinson Company or the subcontractor, and to the Occidental Indemnity Company as the Occidental Company.
The engineer was given authority to suspend the work for various causes, and to direct the excavation and disposal of material from borrow pits. The times and manner in which watering of surface material might be resorted to were specified. The device to be employed in such watering was to be approved by the engineer prior to use. The use of a water plant and the amount of water used was to be as directed by the engineer.
Pursuant to the provisions of the subcontract between the Warren Company and the Thomlinson Company, the Thomlinson Company, as principal, and the Occidental Company, as surety, executed a bond in favor of the Warren Company, and it is on this bond that suit has been brought On the same day that the contract bond was executed, the Occidental Company, which was surety on the contract bond, also issued its public liability insurance policy which on its face covered the subcontractor, Thomlinson Company, alone, in its operations on the project.
To continue reading
Request your trial-
Waterway Terminals Co. v. P. S. Lord Mechanical Contractors
... ... 671 (D.Or.1962) has been pressed upon us. The court there held that our decisions on the question were not ... v. Thomlinson Co., 172 Or. 307, 324-325, 141 P.2d 817; Glens Falls Indemnity Co. v ... ...
-
Continental Cas. Co. v. Phoenix Const. Co.
... ... v. Trask, 238 App.Div. 668, 266 N.Y.S. 1; and they do not assist us. The present problem is one of interpretation of the Transport policy, ... v. Thomlinson-Arkwright Co., 172 Or. 307, 141 P.2d 817, 824, 826; Aetna Casualty & ... ...
-
American Fidelity & Cas. Co. v. All American Bus Lines
... ... 595, 53 N.E.2d 790; U.S. Fidelity & Guaranty Co. v. Thomlinson-Arkwright Co., 172 179 F.2d 10 Or. 307, 141 P.2d 817. Where such total ... To us it seems clear that as between the two insurers, it would be most just and ... ...
-
Southern Pac. Co. v. Morrison-Knudsen Co., MORRISON-KNUDSEN
... ... The common-law rules which the Industry urges us to apply are not available because of its obligation 'to indemnify and ... 47, 53, 155 P.2d 923; U. S. Fidelity & Guaranty Co. v. Thomlinson-Arkwright Co., 1943, 172 Or. 307, 324, 141 P.2d 817. But the rule ... ...