Commissioners of Lexington v. Aetna Indemnity Co. of Hartford, Conn.

• Decision Date: 11 May 1911
• Citation: 71 S.E. 214,155 N.C. 219
• Parties: COMMISSIONERS OF LEXINGTON v. ÆTNA INDEMNITY CO. OF HARTFORD, CONN., et al.
• Court: North Carolina Supreme Court

71 S.E. 214

155 N.C. 219

COMMISSIONERS OF LEXINGTON v. ÆTNA INDEMNITY CO. OF HARTFORD, CONN., et al.

Supreme Court of North Carolina

May 11, 1911

Appeal from Superior Court, Davidson County; W. J. Adams, Judge.

Action by Commissioners of Lexington against the Ætna Indemnity Company of Hartford, Connecticut, and another. Judgment for plaintiff, and defendant company appeals. Affirmed.

Generally in an action for indemnity, brought by one held liable for negligence, for which another, as between themselves, is primarily liable, the judgment in the action against the party indemnified is evidence of his liability, and, when notice to defend was given the indemnitor, of the amount of damages; but it does not establish which of the wrongdoers is primarily liable.

In an action by a municipality on an indemnity bond, given by a street contractor, for reimbursement on account of recovery by a pedestrian who fell into an unguarded excavation judgment in the pedestrian's suit established the contractor's primary liability, as well as the town's liability, when such primary liability is shown by the record in that suit.

The West Construction Company contracted with the town of Lexington to do certain work in grading, paving macadamizing, and otherwise improving its streets, according to plans and specifications furnished; and, to secure the faithful performance of the work in a proper and careful manner, it executed to the town its bond with the other defendant, Ætna Indemnity Company, as surety, by which it agreed to indemnify the town and save it harmless "from all suits, actions, proceedings of every name or description in law or equity, brought against the said town or any officer or officers, agents or servants thereof, for or on account of any injuries or damages received or sustained by any person, structure or property, by or from said contractor, his servants or agents and also to indemnify and save harmless the said (town) from all suits or actions for any injuries or damages sustained by any party or parties by or from any causes under the control of said contractor while in the construction of the streets or any part thereof, or any negligence in guarding the same or by or on account of any act of omission of said contractor or his agents or employés." The construction company, while in the prosecution of the work, caused a trench to be dug across a sidewalk, and piled earth and rocks near it, which made it very dangerous to the public using the street, and failed to place lights or barriers around it, so as to warn pedestrians and render the use of the sidewalk safe.

C. M. Clodfelter, while walking along the sidewalk at night, fell into the excavation without any negligence or fault on his part, and was seriously injured. He brought an action against the town and the construction company, alleging substantially the foregoing facts, and, further, that he was injured by the negligence of the construction company in digging the trench and not properly safeguarding it, and by the negligence of the town, in that the latter did not cause the trench to be thus safeguarded by lights or barriers, in order to prevent injury to persons passing along the sidewalk. There was a recovery in that action against the town and the construction company upon issues and a verdict of the jury, which found that Clodfelter had been injured by the negligence of the construction company and the town, as alleged in the complaint; that is, that the construction company was negligent in not putting up lights or barriers at the trench to prevent injury to pedestrians, and that the town was negligent for the same reason. The jury assessed Clodfelter's damages at $1,700, and judgment was entered upon the verdict for that amount, which was paid by the town. The indemnity company was duly notified of the pendency of that action and requested to come in and defend the same. This action was brought against the construction company and the indemnity company, as its surety upon their bond, to recover the amount of damages sustained by the plaintiff and costs. Issues were submitted to the jury and found in favor of the plaintiff. Judgment was rendered upon the verdict for the damages assessed, and the defendant appealed.

Walser & Walser, for appellant.

Emery E. Raper, for appellee.

WALKER, J. (after stating the facts as above).

As a general rule, when indemnity is sought by one who has been adjudged liable for damages arising from negligence for which another, as between themselves, is primarily liable, the judgment in the action against the former is evidence in the action brought for indemnity that the defendant in the first action, plaintiff in the second, was liable for the damages, and, 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, unless that question was involved in the issue and decided. Mayor v. Brady, 70 Hun, 250, 24 N.Y.S. 296; O. S. Nav. Co. v. C. T. Espanola, 134 N.Y. 461, 31 N.E. 987, 30 Am. St. Rep. 685.

But in this case we are of the opinion that the judgment in the first action must be given greater effect than it would have under the ordinary rule, as by referring to the record in that case, which was in evidence, we can see clearly, by reading the verdict in connection with the pleadings, that the jury have found such facts as establish the primary liability of the West Construction Company for the injury to Clodfelter, and, besides, the undisputed facts in this case show the same liability. The facts are that the construction company dug the trench and failed to place lights there, or to erect barriers around the trench, to warn persons using the walk. It was the author of the injury and the principal wrongdoer. As between it and the town, the latter has committed no wrong. An illustration of the rule will be found in Mayor v. Brady, supra, where it is said: "The right to lay the pipe carried with it to the contractors the obligation to so protect and guard it as to warn passers-by, and thus save them from injury. Consent by a municipal corporation to a person to do a lawful act merely permits it to be done in a careful, prudent, and lawful manner, and when it is performed in any other manner, and injury to third persons ensues, the author of the injury is liable therefor. Had the contractors performed their full duty by so guarding the pipe as to warn travelers of its presence on the walk, there could have been no recovery in the action of Cruikshank against the city."

So in Port Jervis v. Bank, 96 N.Y. 550, it was said: "It is well settled that a municipal corporation, which has been compelled to pay a judgment recovered against it for damages sustained by an individual through an obstruction, defect, or excavation in the sidewalk or street of such corporation, has an action over against the person who negligently or unlawfully created the defect which causes the injury. City of Rochester v. Montgomery, 72 N.Y. 67, and cases there cited. This liability grows out of the affirmative act of the defendant and renders him liable, not only to the party injured, but also mediately liable to any party who has been damnified by his neglect. Liability in such a case is predicated upon the negligent character of the act which caused the injury, and the general principle of law which makes a party responsible for the consequences of his own wrongful conduct. Clark v. Fry, 8 Ohio St. 359 ; Ellis v. Sheffield Gas Co., 75 Eng. C. L. 767. Consent given by a corporation to a citizen to make an excavation in a public street does not vary the rights or liabilities of the parties in respect to such a cause of action, when it is based upon the wrongful and negligent manner in which the act was done, and not upon its unlawfulness. Upon receiving a license from the body authorized to grant it to dig in a street, the licensee impliedly agrees to perform the act in such a manner as to save the public from danger and the municipality from liability."

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