Farrell v. Eastern Bridge & Structural Co.
| Decision Date | 26 June 1935 |
| Citation | 291 Mass. 323,197 N.E. 68 |
| Parties | FARRELL et al. v. EASTERN BRIDGE & STRUCTURAL CO. |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
Exceptions from Superior Court, Berkshire County; Morton Judge.
Action of contract in the superior court by Fred J. Farrell and others against the Eastern Bridge & Structural Company wherein defendant filed a claim for recoupment or set-off. Verdict for the plaintiffs in the sum of $3,571.85, and defendant saves exceptions.
Exceptions sustained.
F. M. Myers and T. F. Cassidy, both of Pittsfield, for plaintiffs.
L. S. Cain, of Pittsfield, for defendant.
The plaintiffs brought this action of contract to recover the unpaid balance of the contract price for erecting, for a building in Albany, New York, the steel framework furnished by the defendant, the general contractor. When the plaintiffs' work on one wing of the building was nearly completed, that wing collapsed, causing injury to the steel and damage to neighboring premises of a third person. The defendant replaced the steel and paid for the damage. By claim of recoupment in the answer and by declaration in set off, it sought to reduce its liability for the balance of the contract price by the amount of its loss.
The judge instructed the jury in substance that the plaintiffs were not responsible for the collapse unless they were negligent. The jury returned a verdict for the plaintiffs for the full balance due, and gave the defendant no relief by way of set off or recoupment. The verdict impliedly established that the plaintiffs were guitless of negligence. The only exceptions are to the refusal of the judge to instruct the jury in substance that Article X of the subcontract made the plaintiffs liable for loss or damage resulting from their acts or those of their employees, irrespective of negligence.
Article X read as follows: ‘ The Erector [the plaintiffs] agrees that, during the progress of the work, it shall insure itself against all liability under the Workmen's Compensation Act and against damage or liability to the public and agrees to protect and indemnify the Contractor [the defendant] against all loss or damage resulting from any of its acts or the acts of its employees.’
The ‘ loss or damage’ against which the plaintiffs undertook to ‘ protect and indemnify’ the defendant, might be damage to the defendant's own property, such as the steel made worthless by the collapse or damage to third persons for which the defendant is liable. In the former alternative, the plaintiffs, if negligent, would be liable to the defendant independently of contract. In the latter alternative, if the plaintiffs were negligent, the defendant must be either in pari delicto or not. If in pari delicto, a contract of indemnity such as this, in the absence of express language not found in Article X making immaterial the negligence or fault of the indemnitee ( Woodbury v. Post, 158 Mass. 140, 33 N.E. 86; Bay State Street Railway Co. v. North Shore News Co., 224 Mass. 323, 112 N.E. 1007; New York Central Railroad Co. v. William Culkeen & Sons Co., 249 Mass. 71, 144 N.E. 96; Clarke v. Ames, 267 Mass. 44, 165 N.E. 696), will not be construed as furnishing the indemnitee indemnity against the consequences of its own actual participation in the wrong. Boston & Maine Railroad v. T. Stuart & Son Co., 236 Mass. 98, 104, 127 N.E. 532; New York Central & Hudson River Railroad Co. v. T. Stuart & Son Co., 260 Mass. 242, 250, 157 N.E. 540; Gast v. Goldenberg, 281 Mass. 214, 183 N.E. 257. If not in pari delicto, the defendant, if compelled to pay damages where the substantial wrongdoing was that of the plaintiffs, would have a remedy over against the plaintiffs...
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