Beal by Boatwright v. Southern Union Gas Co.

• Decision Date: 28 November 1956
• Docket Number: No. 6126,6126
• Citation: 304 P.2d 566,62 N.M. 38,1956 NMSC 113
• Parties: Dan BEAL, by his Guardian and Next Friend, Rockne BOATWRIGHT, Plaintiff, v. SOUTHERN UNION GAS COMPANY, a Corporation, et al., Defendant-Appellant, Clyde Coe, d/b/a C & C Contractors, et al., Third Party Defendant-Appellee. Donald P. RIX, Plaintiff, v. SOUTHERN UNION GAS COMPANY, a Corporation, et al., Defendant-Appellant, Clyde Coe, d/b/a C & C Contractors, et al., Third Party Defendant-Appellee.
• Court: New Mexico Supreme Court

Page 566

304 P.2d 566

62 N.M. 38

Dan BEAL, by his Guardian and Next Friend, Rockne

BOATWRIGHT, Plaintiff, v. SOUTHERN UNION GAS COMPANY, a Corporation, et al.,

Defendant-Appellant,

Clyde Coe, d/b/a C & C Contractors, et al., Third Party

Defendant-Appellee.

Donald P. RIX, Plaintiff, v. SOUTHERN UNION GAS COMPANY, a Corporation, et al.,

Defendant-Appellant,

Clyde Coe, d/b/a C & C Contractors, et al., Third Party

Defendant-Appellee.

No. 6126.

Supreme Court of New Mexico.

Nov. 28, 1956.

Keleher & McLeod, Martin A. Threet, Albuquerque, for Southern Union gas co.

Hannett, Hannett & Cornish, Albuquerque, for Clyde Coe, d/b/a C & C Contractors.

McGHEE, Justice.

The Southern Union Gas Company, defendant, appeals from an order of the lower court dismissing its third party complaint against Clyde Coe who was the employer of the plaintiffs, Dan Beal and Donald P. Rix, when they were injured in the course of their employment by a gas explosion while they were engaged in the work of installing sewer lines in the City of Albuquerque. These employees have filed separate suits in tort against the Southern Union Gas Company alleging the negligent maintenance of the company's gas lines permitted dangerous quantities of gas to escape and accumulate where the plaintiffs were working, which became ignited, exploded and proximately caused their injuries. The gas company asserts its freedom from negligence but contends the employer, Clyde Coe, was also negligent and if a judgment should be rendered against the gas company at the suit of these plaintiffs, it should be allowed indemnity or contribution from the employer. The permissibility of the gas company's third party complaint against the employer, Clyde Coe, is common to both actions which were consolidated for trial and appeal.

Our Workmen's Compensation Act, Sec. 59-10-5, N.M.S.A.1953, provides, in part:

'Any employer who has elected to and has complied with the provisions of this act, including the provisions relating to insurance, shall not be subject to any other liability whatsoever for the death of or personal injury to any employee, except as in this act provided; and all causes of action, actions at law, suits in equity, and proceedings whatever, and all statutory and common-law rights and remedies for and on account of such death of, or personal injury to any such employee and accruing to any and all persons whomsoever, are hereby abolished except as in this act provided.'

A further section 59-10-6, provides:

'The right to the compensation provided for in this act, in lieu of any other liability whatsoever, to any and all persons whomsoever, for any personal injury accidentally sustained or death resulting therefrom, shall obtain in all cases where the following conditions occur:

'(a) Where, at the time of the accident, both employer and employee are subject to the provisions of this act; and where the employer has complied with the provisions thereof regarding insurance.

'(b) Where, at the time of the accident, the employee is performing service arising out of and in the course of his employment.

'(c) Where the injury or death is proximately caused by accident arising out of and in the course of his employment, and is not intentionally self-inflicted.'

The lower court found the employer had come under the Workmen's Compensation Act and through its insurer had paid or was paying all obligations thereunder to the plaintiff employees; that no contract of indemnity, express or implied, existed between Southern Union Gas Company and the employer; and that the employer's liability was limited solely to the liability imposed by the Workmen's Compensation Act.

We will first consider appellant's contention an indemnity provision in the contract between the employer and the City of Albuquerque indemnifies appellant for any and all damages it may have to pay plaintiffs. This provision reads:

'30. Damages. The contractor hereby expressly binds himself to indemnify the City and its engineer from all suits and accidents of every nature and description brought against the City by any person or persons on account of the construction or the work or by reason of any act of omission, misfeasance, or malfeasance of the contractor, his agents, sub-contractors or employees.'

Appellant contends this provision was placed in the contract not only for the benefit of the city but also for the protection of a person standing in appellant's position. It thereby seeks to bring itself under the authority of cases where an independent contractor or employer has a contractual duty to provide certain equipment or take certain precautions for the protection of workmen who are injured as the result of failure to perform such duty and recover from owners of buildings or ships, etc., where it is recognized the owner has a right to indemnity from such independent contractor or employer. See, for example: Valerio v. American President Lines, D.C.1952, 112 F.Supp. 202; Lundberg v. Prudential Steamship Corp., D.C.1951, 102 F.Supp. 115; Burris v. American Chicle Co., D.C.1941, 120 F.2d 218.

The compensation acts with which these cases are concerned do not contain the very...