Diamond State Telephone Co. v. University of Del.
| Decision Date | 16 July 1970 |
| Citation | 269 A.2d 52 |
| Parties | The DIAMOND STATE TELEPHONE COMPANY, a Delaware corporation, third-Party Defendant Below, Appellant, v. The UNIVERSITY OF DELAWARE, Defendant and Third-Party Plaintiff Below, Appellee. |
| Court | Supreme Court of Delaware |
Appeal from the Superior Court in and for New Castle County.
Hugh L. Corroon, of Potter, Anderson & Corroon, Wilmington, for appellant.
Clement C. Wood, of Allmond & Wood, Wilmington, for appellee.
This is an appeal by Diamond State Telephone Company (Diamond) from the denial of its motion to dismiss the third-party complaint of University of Delaware (University) on the ground that it fails to state a claim upon which relief can be granted. The third-party complaint of the University seeks indemnity of any amount recovered against it in the main action brought by the widow of a deceased employee of Diamond.
The deceased employee of Diamond was engaged in installing a T-V cable into one of the University buildings. He was killed by electrocution in a manhole containing electrical conduits owned by the University. The widow brought suit against the University, alleging negligence on its part in the maintenance of a dangerous condition on its premises, to-wit, the manhole in which the decedent was electrocuted.
Following the filing of the action against it based upon its alleged negligence, the University, by third-party complaint, sought to bring Diamond into the action as a third-party defendant for purposes of indemnification. The third-party complaint, as amended, alleges that Diamond is an independent contractor engaged in supplying telephone service and other equipment to the general public. At the time the death of plaintiff's decedent occurred, Diamond was engaged in running the cable into a building on lands of the University at the request of the University. The University's theory of the third-party complaint is that 'inherent in the obligations arising from the implied contract between Diamond and University for the work being done by Diamond * * * is the obligation to do the work in a careful and prudent manner', and that Diamond breached this duty.
Diamond moved to dismiss the third-party complaint on the ground that it did not state a claim upon which relief could be granted. The trial court denied Diamond's motion and from that order Diamond appeals.
University has moved to dismiss the appeal of Diamond on the ground that it is an appeal from an interlocutory order of the Superior Court which has settled no legal issue or determined substantial rights. We think, however, the motion to dismiss the appeal must be denied for the reason that the effect of the decision of the court below is to hold that an employer obligated to pay workmen's compensation to a deceased employee, and who has in fact paid that, may nevertheless, despite 19 Del.C. § 2304, be held to indemnify a third party which has been sued for its alleged negligence in causing the death of the deceased employee. This decision is a question of first impression in this state. As such, a substantial issue and a legal right has been established and the interlocutory order is therefore appealable. Pepsico, Inc. v. Pepsi-Cola Bottling Co., Del.Supr., 261 A.2d 520 (1969).
Basically, the complaint made by the University against Diamond is that as an independent contractor performing work on the grounds of the University, it failed to notify the University of the time at which it intended to commence the work so that the University could have taken the necessary steps to make the area safe for the performance of the work, specifically to de-energize the electrical conduits contained in the manhole in which Diamond's employee met his death. In theory, it seeks damages for a breach of an implied covenant to perform the work in a workmanlike manner.
Initially, it may be observed, as the court below held, that University may not seek contribution from Diamond as a joint tortfeasor. This comes about by reason of 10 Del.C. § 6301, a part of the Uniform Joint Tortfeasor's Contribution Act, which requires that in order to enforce contribution, joint tortfeasors must be liable to the same person asserting the claim. Lutz v. Boltz, 9 Terry 197, 100 A.2d 647 (Del.1953); Ferguson v. Davis, 9 Terry 299, 102, A.2d 707 (Del.1954).
Diamond may not be held to be jointly liable with the University even though their respective acts of negligence, assuming such to be the fact, may have concurred in causing the death of the employee of Diamond. The reason for this is that Diamond has paid compensation under the Workmen's Compensation Law to the widow of its deceased employee which precludes any assertion against Diamond by the widow of common law liability for having caused the death through negligence. This occurs by reason of the provision in the Workmen's Compensation Law, 19 Del.C. § 2304, that the payment of compensation to an injured employee or his representatives is exclusive and precludes the assertion of any other remedies against the employer. Miller v. Ellis, 11 Terry 11, 122 A.2d 314 (Del.1956).
The court below also apparently based its decision upon the concept that when two individuals jointly are negligent and the concurrent negligences contribute to the injury of another, one is the primary wrongdoer and the other is the secondary wrongdoer, or that such may be the fact. In that event, there are decisions holding that the primary wrongdoer has the duty to indemnify the secondary or passive wrongdoer for any recovery made against it by the injured party.
We think, however, that such may not be for the reason that to provide for indemnification in terms of primary and secondary, or active and passive wrongdoing is to hold the two parties as joint tortfeasors with the right of contribution running between them. As we have pointed out, under19 Del.C. § 2304, and Miller v. Ellis, Supra, this may not be under our law. That such parties must be treated as joint tortfeasors seeking contribution, one from the other, is made clear by Slattery v. Marra Brothers, Inc., 2 Cir., 186 F.2d 134, 139 (1951) in which it is stated that in imposing liability upon the primary-secondary basis, 'We cannot, * * * agree that that result is rationally possible except upon the assumption that both parties are liable to the same person for the joint wrong.' We agree with that statement. The court below was therefore in error in holding Diamond liable to the University upon the basis of primary and secondary wrongdoing or active and passive negligence concurring to cause the injury.
The court below also ruled that if a contract is not proven between University and Diamond, there may still be an equitable obligation on Diamond to indemnify University. Cited is the Restatement of Law on Restitution § 95 (1937). We think, however, that this has no application in the case at bar because it assumes the existence of an underlying fact that two individuals have become jointly liable for harm caused to a third person because of negligent failure to make safe a dangerous condition. As we have pointed out, Diamond cannot be held liable to decedent's widow on any common law theory by reason of its payment of compensation under the Workmen's Compensation Law and, therefore, there can be no joint liability to be made the basis for restitution.
It follows, therefore, that if Diamond is to be held liable to indemnify University, it must be upon some theory other than tortious conduct on its part. The only basis for liability to indemnify is the breach of a promise, either express or implied, between Diamond and University to perform the work in a workmanlike manner. This is the basis of University's third-party complaint against diamond.
The theory of the main action against the University is that it negligently permitted the maintenance on its premises of an unsafe condition, to-wit, a manhole with exposed electrical conduits and water in the bottom, resulting in the death of Diamond's employee. The charge by the University against Diamond is that it breached the implied covenant of its contract with University to perform the specified work in a workmanlike and safe manner, knowing that the work to be performed involved a danger, to-wit, dealing with electrical conduits.
The right to maintain an action of this type by a third party against a negligent employer who has been paying workmen's compensation to his injured employee or his widow, is recognized in...
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