H. Hohensee Const. Co. v. Chi., M., St. P. & P. Ry. Co.

• Court: Wisconsin Supreme Court
• Writing for the Court: FOWLER
• Citation: H. Hohensee Const. Co. v. Chi., M., St. P. & P. Ry. Co., 218 Wis. 390, 261 N.W. 242 (Wis. 1935)
• Decision Date: 04 June 1935
• Parties: H. HOHENSEE CONST. CO., INC., v. CHICAGO, M., ST. P. & P. RY. CO. ET AL.

218 Wis. 390

261 N.W. 242

H. HOHENSEE CONST. CO., INC.,

v.CHICAGO, M., ST. P. & P. RY. CO. ET AL.

Supreme Court of Wisconsin.

June 4, 1935.

Appeal from an order of the Circuit Court for Milwaukee County; Otto H. Breidenbach, Circuit Judge.

Reversed.

Action by Hohensee Construction Company against the Chicago, Milwaukee, St. Paul & Pacific Railway Company, commenced April 2, 1934, and cross-action by the railroad company against the city of Milwaukee, interpleaded. From an order sustaining a demurrer to the cross-complaint of the railroad company, entered December 6, 1934, the railway company appeals.

Bender, Trump & McIntyre and David G. Owen, Jr., all of Milwaukee, for appellant.

Max Raskin, City Atty., and John E. Megna, Asst. City Atty., both of Milwaukee, for interpleaded respondent.

FOWLER, Justice.

The plaintiff was constructing a sewer for the city of Milwaukee under a railway track. The railway company ran a train into machinery of the plaintiff that was located on the track during the construction of the sewer. The plaintiff sued the railway company to recover its damages for injury to its machinery charging negligence on the part of the railway company. The railway company by answer admits running its train into and injuring the plaintiff's machinery, but denies that it was negligent in so doing.

The railway company interpleaded the city of Milwaukee and filed its cross-complaint against it, in which it alleges that while the plaintiff was constructing a sewer for the city of Milwaukee it placed some of its machinery across defendant's track, and that while the machinery was so situated a train of defendant collided with and injured it. The cross-complaint then alleges that the railway company for consideration granted the city the right to construct the sewer referred to in the complaint through its lands, and that by the agreement by which said right was granted the city agreed that in case it (the railway company) should “suffer or become liable for any loss, cost, or damage whatsoever, in any manner arising from or growing out of constructing the sewer, then in every such case the city would reimburse the railway company to the full amount of the loss or damage which it sustained or for which it became liable.” The prayer of the cross-complaint is that in case recovery be had by the plaintiff from the defendant, the defendant have recovery over against the city upon its agreement of indemnity.

To this cross-complaint the city demurred on the grounds (1) of insufficiency of the facts stated to constitute a cause of action, and (2) that the cause of action, if any the railway company has against the city, is not pleadable as a cross-complaint.

[1] 1. The city makes two contentions in support of its demurrer on the ground of the insufficiency of the facts pleaded: (a) That the agreement of indemnity does not cover damages caused by the railway company's negligence; and (b) that the city has no power to enter into a contract of indemnity.

(a) It seems sufficient on this point to say that the question of the railway company's negligence is not raised by the demurrer to the cross-complaint. The cross-complaint does not say anything whatever about negligence. It merely alleges the indemnity agreement and that the damage to plaintiff's machinery arose out of the construction of the sewer. Negligence of the railway company is therefore not in issue, as between the city and the company. That issue as between them remains to be raised by an appropriate answer to the cross-complaint, and the questions of the construction of the contract and whether the railway company can contract for indemnity against the results of its negligence cannot arise here except upon appeal from the judgment or from...