Indemnity Insurance Co. v. KOONTZ-WAGNER ELECTRIC CO., Civ. No. 1475.

• Decision Date: 10 June 1955
• Docket Number: Civ. No. 1475.
• Citation: 131 F. Supp. 432
• Parties: INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. KOONTZ-WAGNER ELECTRIC CO., Inc.
• Court: U.S. District Court — Northern District of Indiana

131 F. Supp. 432

INDEMNITY INSURANCE COMPANY OF NORTH AMERICA v. KOONTZ-WAGNER ELECTRIC CO., Inc.

Civ. No. 1475.

United States District Court N. D. Indiana, South Bend Division.

June 10, 1955.

Jones, Obenchain & Butler, South Bend, Ind., for plaintiff.

Slaymaker, Locke & Reynolds, Indianapolis, Ind., John W. Niemiec, South Bend Ind., for defendant.

PARKINSON, District Judge.

This is an action seeking recovery on a contractual indemnification tried to the court on a written stipulation of the facts, and it is the cause on the merits which now solicits the decision of this court.

The core question concerns the rights of the parties under clause 13 of the purchase order of May 20, 1948, the pertinent part of which reads as follows:

"If this order covers the performance of labor at the Buyer's plants or if the performance of labor by Seller at the Buyer's plants results from or is incident to Seller's supplying the articles, material and/or work covered by this order, the Seller agrees to indemnify and protect the Buyer against all liabilities, claims or demands for injuries or damages to any person or property growing out of the performance of this order whether such liabilities, claims or demands grow out of the negligent act of the Buyer or the Buyer's agent, or otherwise."

The Buyer is the plaintiff's assured, The Studebaker Corporation, to the rights of which the plaintiff is subrogated, and the Seller is the defendant, Koontz-Wagner Electric Company, Inc.

Under the stipulation of facts upon which this cause was submitted, the plaintiff is entitled to recover unless the defendant is correct in its contentions, or either one of them, that:

1.

"The claim sued upon by the plaintiff was not one `growing out of the performance' of the contract for which the indemnity agreement was given.

2.

"The contract provides for indemnification against negligence of The Studebaker Corporation and is therefore void and invalid in Indiana because it is contrary to public policy."

Under the agreed facts contained in stipulations 7 and 8, we have no alternative but to hold that Roy Todd, an employee of the defendant, was injured in the course of his employment for the defendant on the premises of The Studebaker Corporation; that he was injured when a scaffold, belonging to the defendant, on which he was engaged in the performance of work covered by the purchase order, was struck by a finger lift truck owned by The Studebaker Corporation and operated by one of its...