Griffiths v. Henry Broderick, Inc., 29962.

Decision Date04 June 1947
Docket Number29962.
Citation27 Wn.2d 901,182 P.2d 18
CourtWashington Supreme Court
PartiesGRIFFITHS v. HENRY BRODERICK, Inc.

Action by Austin E. Griffiths, owner of an apartment house, against his managing agent, Henry Broderick, Inc., to recover a sum which plaintiff had been compelled to expend by reason of injuries to a tenant incurred because of a defective stairway. The cause was dismissed, and plaintiff appeals.

Affirmed.

Appeal from Superior Court, King County; William J. Wilkins, judge.

Lewie Williams, Frederick R. Burch, and Austin E. Griffiths, all of Seattle, for appellant.

J. E Hullin, of Seattle, for respondent.

ROBINSON Justice.

The defendant in this action filed a demurrer to the complaint therein, which was sustained by the trial court, and plaintiff having failed and neglected to serve or file any further pleading, the cause was dismissed, on defendant's motion, by a judgment entered on March 1, 1946. From that judgment, this appeal was duly and regularly taken.

Plaintiff suing as the agent for the community composed of himself and Ella M. Griffiths, his wife, prayed for a judgment against the defendant in the amount of $2,292.49, alleging in his complaint: (1) That, during all the times therein mentioned the community owned a small apartment house in the city of Seattle; (2) that defendant, Henry Broderick, Inc., was engaged in the real estate business and in caring for and managing buildings of various kinds, including apartment houses; (3) that, on January 9, 1942, plaintiff appointed the defendant corporation as his agent to care for and manage said apartment house; (4) that, prior to and after that appointment, an apartment in said building was occupied by Robert G. Loggins and Lina C. Loggins, his wife; (5) that, in November, 1943, Lina C. Loggins suffered an injury by reason of a defective stairway; (6) that the proximate cause thereof was the negligence of Henry Broderick, Inc., in permitting said stairway to become out of repair; (7) that Loggins and wife brought suit against the plaintiff, and, although plaintiff seasonably demanded that his agent, the defendant in this cause, defend that action, it refused to so defend; (8) that, as a result of such refusal, plaintiff was compelled to do so; (9) that a judgment was rendered against him therein which he was compelled to pay; and (10) that the discharge of this judgment, plus attorneys' fees and other sums necessarily expended in defense of the action, required a total expenditure on his part of $2,292.49.

Attached to the complaint, and by reference made a part thereof as Exhibit 'A,' is the management contract between the plaintiff, Griffiths, and the defendant, Henry Broderick, Inc. We quote the material parts thereof, italicizing that portion which induced the trial court to sustain the demurrer:

'Seattle, Washington, 1/9/42
'I appoint Henry Broderick, Inc., my agent, from until further notice, and authorize Henry Broderick, Inc., to take charge of and to manage the property specified on the reverse side of this authorization, situate in the City of Seattle, King County, Washington, and in consideration of such services rendered or to be rendered, I hereby agree to pay a commission of five (5%) per cent per month on all amounts collected from said property, which commission may be deducted monthly by Henry Broderick, Inc., from said amounts.
'I agree that Henry Broderick, Inc., will not be held responsible for any injury or damage to said property, or for the loss of or injury to any furniture, fixtures or other articles therein; and that all persons employed at said property shall be deemed to be the employees of the undersigned; and I further agree to save and hold Henry Broderick, Inc., harmless of and from any and all loss, damage or injury to any person or persons whomsoever, or property, arising from any cause or for any reason whatsoever in or about said premises.
'This agreement is subject to cancellation by the undersigned after sixty (60) days from the effective date of this authorization upon payment in full to Henry Broderick, Inc., of all commission due on any leases negotiated in this property by Henry Broderick, Inc., less any moneys paid thereafter for collection of rentals upon said leases. The rate of commission prescribed by the Seattle Real Estate Board shall be used in calculating said commission.
'This agreement is subject to cancellation by Henry Broderick, Inc., upon three days' written notice to the undersigned.
'Bldg. 603-603 Federal Avenue.
'(Signed) Austin E. Griffiths.'

The appellant contends (1) that the contract does not unequivocally provide that he shall indemnify the defendant for the consequences of its own negligence; and (2) that, if it does so provide, it is clearly void as against public policy.

In support of his first contention, the appellant quotes the following from the treatise on 'Indemnity' in 27 Am.Jur. 464, § 15:

'It is well settled that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not expressed in unequivocal terms.'

There is no doubt but that this rule is well settled. But we think the author of the sentence, above quoted, meant no more than that the rule in such situations is that doubts, if any, should be resolved in favor of the indemnitor. It is scarcely conceivable that he intended to state an exception to the rule which he had stated only two pages, Before , to wit:

'Contracts of indemnity, therefore, must receive a reasonable construction so as to carry out, rather than defeat, the purpose for which they were executed. To this end they should neither, on the one hand, be so narrowly or technically interpreted as to frustrate their obvious design, nor, on the other hand, so loosely or inartificially as to relieve the obligor from a liability within the scope or spirit of their terms.' 27 Am.Jur. 462, § 13.

The appellant stresses the fact aht the word 'negligence' does not appear in the indemnity covenant, and contends that it is, therefore, manifest that the indemnity clause of the contract is equivocal. We think counsel's contention is well-answered in Payne v. National Transit Co., D.C., 300 F. 411, 412, 413. The indemnity covenant in that case reads as follows:

'Said party of the second part does further agree to indemnify and save harmless the party of the first part from and against all claims, suits, damages, costs, losses, and expenses, in any manner resulting from or arising out of the laying, maintenance, renewal, repair, use, or existence of the said pipe (whether heretofore or hereafter laid), including the breaking of the same or the leaking of oil from the same.'

In holding that the above covenant provided that the indemnitor should indemnify the indemnitee against the indemnitee's own negligence, the court said:

'It is true that the courts have said that, in order to indemnify against the indemnitee's negligence the lenguage must be clear and unequivocal; but I do not understand that the indemnifying contract must contain express words against negligence. If it is clear, from the language used, that it was intended to cover losses arising from the negligence of the indemnitee, this is sufficient.'

The above, of course, is but a one-man opinion, but the decision was affirmed in every particular by the circuit court of appeals, National Transit Co. v. Davis, 3 Cir., 6 F.2d 729, 733. Quoting five pages of the six-page opinion of the trial court in the footnotes, the circuit court, in affirming the decision, said:

'In so holding we are of opinion that neither in the questions discussed as above, or in the other points raised in the case, all of which have had our attention, did the court below commit error. Its judgment is therefore affirmed.'

In Southern Pacific Co. v. Fellows, 22 Cal.App.2d 87, 90, 71 P.2d 75, 77, a case which the supreme court of California declined to review, it is said:

'The indemnity clause in the contract, undertaking, as it does, to indemnify railroad company from and against ' any and all claims, loss, damage, injury and liability howsoever the same may be caused, resulting directly or indirectly from work covered by this agreement,' is so sweeping an allembracing in its terms that, although it does not contain an express stipulation indemnifying appellant against liability caused by its own negligence, it accomplishes the same purpose. (Italics ours.)'

It would seem that an indemnity covenant could not be more 'sweeping and allembracing in its terms' than the covenant in this case, which, as we have hitherto seen, reads as follows:

'I further agree to save and hold Henry Broderick, Inc., harmless of and from any and all loss, damage or injury to any person or persons whomsoever, or property, arising from any cause of for any reason whatsoever in or about said premises.'

In our opinion, there can be no doubt but that a loss, damage or injury occasioned by negligence is clearly within the following language of the indemnity provision of the management contract; '* * * all loss, damage or injury to any person * * * arising from any cause or for any reason * * * in or about said premises.'

Appellant's second contention is that the indemnity provision is void as against public policy. Many of the cases which appellant cites are common carrier cases. It is the universal rule that a common carrier cannot by contract relieve itself of liability for negligence in the performance of contracts of carriage. But even a common carrier can bargain for indemnity with respect to its own negligence in contracts in which carriage is not involved. The case of Michigan Millers Mutual Fire Ins. Co. v....

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