Hollywood Barbecue Co. v. Morse
| Decision Date | 30 June 1943 |
| Citation | 50 N.E.2d 55,314 Mass. 368 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | HOLLYWOOD BARBECUE CO. INC. v. DONALD G. MORSE & another. |
May 10, 1943.
Present: FIELD, C.
J., DONAHUE, QUA DOLAN, & RONAN, JJ.
Indemnity. Judgment.
Joint Tortfeasors.
A landowner judgment debtor in an action by a pedestrian for personal injuries sustained on a sidewalk by reason of negligent opening of bulkhead doors on the landowner's abutting premises by a contractor doing work for the landowner on the premises, was not a joint tortfeasor in pari delicto with the contractor, and, having notified him to defend the action was entitled to recover from him the amount of the judgment therein and counsel fees incurred in defending it.
In an action by a judgment debtor to recover the amount of the judgment and his counsel fees from one whose negligence on premises of the judgment debtor was alleged in the later action to have resulted in the judgment but as to which negligence the judgment debtor was not a joint tortfeasor in pari delicto with the present defendant, such judgment, if the present defendant had been duly notified to defend the previous action, was conclusive that the judgment debtor was liable to the judgment creditor.
CONTRACT OR TORT. Writ in the Municipal Court of the City of Boston dated June 11, 1941.
The action was heard by Tomasello, J., who found for the plaintiff in the sum sought by it. A report was ordered dismissed by the Appellate Division, and the defendants appealed.
J. G. Leonard, for the defendants. D. Flower, for the plaintiff, submitted a brief.
In this action the plaintiff seeks to recover from the defendants the amount of a judgment rendered against the plaintiff in favor of one Benson and the amount of the counsel fees incurred by the plaintiff in defending the former action.
In the action now before us these facts were admitted or could be found: The plaintiff conducts a restaurant in Boston.
The defendants had entered into an agreement with the plaintiff to purchase and remove the plaintiff's meat scraps. While the agreement was in force, a servant of the defendants, acting within the scope of his employment, undertook to remove such meat scraps from the plaintiff's place of business through a bulkhead opening into the abutting sidewalk. When he suddenly raised and opened "the flap doors" leading out of the basement they struck Benson, a passer-by, in the stomach and injured him. Benson received no warning that the doors were to be opened. His action in which he recovered judgment against the present plaintiff is described in the record now before us as "for injuries caused by the negligent failure" of the plaintiff "to properly guard a bulkhead door located in the sidewalk . . . as it was opened by an employee of the present defendant." The plaintiff notified the defendants to come in and defend the former action, but the defendants did not do so.
The defendants contend that the plaintiff was in pari delicto with the defendants and so cannot recover over. We do not agree. Whatever may have been the duty of the plaintiff as an occupier of premises to a person passing by on the sidewalk it could be found in the action now before us that as between the plaintiff and the defendants the removal of the meat scraps was the defendants' work performed by their servant. As between the plaintiff and the defendants the defendants owed to the plaintiff the duty of performing this work in a proper manner, including the duty to warn pedestrians or to "guard" the bulkhead door. It could be found that they failed to live up to this duty, and that this failure resulted in the plaintiff being held liable. In Gray v. Boston Gas Light Co. 114 Mass 149 , 154, it was held that the rule that one of two parties who, acting together, commit an illegal or wrongful act cannot have indemnity from the other ...
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