Hartford Accident & Indem. Co. v. Worden-Allen Co.

• Decision Date: 12 June 1941
• Citation: 238 Wis. 124,297 N.W. 436
• Parties: HARTFORD ACCIDENT & INDEMNITY CO. v. WORDEN-ALLEN CO.
• Court: Wisconsin Supreme Court

238 Wis. 124

297 N.W. 436

HARTFORD ACCIDENT & INDEMNITY CO.

v.WORDEN-ALLEN CO.

Supreme Court of Wisconsin.

April 15, 1941.

Rehearing Denied June 12, 1941.

Appeal from a judgment of the Circuit Court for Milwaukee County; Otto H. Breitenbach, Judge.

Affirmed.

This was an action commenced on March 28, 1940, by Hartford Accident & Indemnity Company, plaintiff, against Worden-Allen Company, defendant, to recover the sum of $8,736.61, theretofore paid by plaintiff on behalf of the Seaman Body Corporation, a corporation in discharge of a judgment in favor of one Criswell against the Seaman Body Corporation for injuries sustained while engaged as an employee of the Worden-Allen Company in construction operations on the premises of the Seaman Body Corporation, together with the expenses of defending that action.The plaintiff claims to be subrogated to the claims of Seaman Body Corporation upon a contract of indemnity executed by defendantWorden-Allen Company to Permanent Construction Company which is asserted to have been for the benefit of Seaman Body Corporation.There were motions for summary judgments by both plaintiff and defendant, and on November 8, 1940, the trial court granted plaintiff's motion and denied that of defendant.From a judgment entered in accordance therewith on November 12, 1940, defendant appeals.The material facts will be stated in the opinion.Lecher, Michael, Whyte & Spohn, of Milwaukee (Thomas S. Stone, of Milwaukee, of counsel), for appellant.

Quarles, Spence & Quarles, of Milwaukee (Kenneth P. Grubb and Paige Cofrin, both of Milwaukee, of counsel), for respondent.

WICKHEM, Justice.

Permanent Construction Company, hereafter called Permanent, is a corporation engaged in the general contracting and construction business.Worden-Allen Company, hereafter called Worden, is a corporation engaged in the fabrication and erection of structural steel.These corporations have substantially the same stockholders, have several executive officers and directors in common, and are controlled by the same persons.The Seaman Body Corporation, hereafter called Seaman, owns a manufacturing plant in Milwaukee.In August, 1936, Permanent secured a contract to erect a building for Seaman upon the premises of the latter.By written contract Permanent sublet the structural steel work to Worden by a contract containing the following undertaking by Worden: “In accepting this order you agree to indemnify, reimburse and save harmless the owners and us of and from all loss and damage to person or property and all claims, suits or demands arising from damages or injuries to you and your employees, ourselves and our employees, the owner and his employees, other contractors and their employees and the general public, due to, arising from, or connected with your operations on this job.”

Work was commenced under these contracts and on September 28, 1936, Charles Criswell, an employee of Worden, touched an iron column which was being erected by the latter and received an electric shock and injuries when a metal cable extending from the boom of a derrick used in erecting the column either came in contact with the uninsulated wire of a power line maintained by Seaman on the premises, or came so close as to cause an arc to form between the wires and the cable.Criswell sought and received workmen's compensation from Worden, the award being increased fifteen percent for violation of an Industrial Commission order with respect to the manner of operation of the boom by Worden.By Virtue of the permission contained in sec. 102.29 (1)(b), Stats., Criswell commenced suit in circuit court against Seaman and the Milwaukee Electric Railway and Light Company for his damages.The action against Seaman was for violation of the safe-place statute.The particulars concerning this action are well set forth in the report of the case in this court.Criswell v. Seaman Body Corp., 233 Wis. 606, 290 N.W. 177.It is enough to state that in the trial court the action was dismissed as against T. M. E. R. & L. and a judgment in favor of plaintiff against Seaman was entered.This judgment was affirmed upon appeal to this court.Sometime after the institution of this action Seaman served Permanent and Worden with a tender of defense and demanded that they defend Seaman and save it harmless from any loss or damage directly or indirectly arising out of matters alleged in Criswell's complaint.Worden served a declination upon Seaman stating that since it was entitled to a portion of Criswell's recovery in repayment of the compensation paid by it, defense of the action would involve it in an inconsistent position.The action was tried and judgment entered against Seaman for $4,975.35 and costs.Plaintiff paid this judgment, and the balance of its present claim is for the expenses incurred in defending the action.

[1] The principal point involved upon this appeal in quite narrow.Plaintiff was the insurer of Seaman against liabilities arising out of the use and maintenance of its premises.Having discharged the liability of Seaman to Criswell arising out of violation of the safe-place statute, it is subrogated by the express terms of its policy to the rights of Seaman against defendant.These rights, if they exist, are based upon the contract between Permanent and Worden by which Worden agreed to save harmless not only Permanent, but the owner of the premises from damages “due to, arising from, or connected with your operations on this job.”By the violation of a safety order governing the manner in which its boom was operated in relation to the power wires, Worden was guilty of misconduct having a causal relation to Criswell's injuries but it sustained no tort liability to Criswell who, as its employee, was entitled only to compensation under the Workmen's Compensation Act.By reason of its failure to move the wires, Seaman sustained a liability to Criswell under the safe-place statute.It is now claimed that plaintiff, which stands in the shoes of Seaman, is not entitled to be indemnified under this contract for any injuries to which Seaman's actual default proximately contributed.We do not consider the contention to be sound.If the indemnity is to mean anything, it must include situations in which Seaman has sustained a liability by reason of the building operations.It may very well be that if the injuries had arisen solely out of Seaman's default in some respect and were not in any way attributable to Worden, there would be no liability under the indemnity agreement.Here, however, the active negligence was that of Worden.Liability of Seaman was predicated upon a failure to furnish a safe place of employment, and there was a default in this respect only because of Worden's operations on the premises.In point of fact, the premises were only unsafe as to Worden's employees.Upon the former appeal liability of Seaman was grounded by this court on the fact that Seaman remained in possession of the premises and under these circumstances it could not delegate either to Permanent or Worden its duties under the safe-place statute.It appears to us that the liability of...