Metzger Bros., Inc. v. Royal Indem. Co., 1 Div. 39

• Decision Date: 14 March 1963
• Docket Number: 1 Div. 39
• Citation: 274 Ala. 643,151 So.2d 244
• Parties: METZGER BROTHERS, INC., et al. v. ROYAL INDEMNITY CO. et al.
• Court: Alabama Supreme Court

Page 244

151 So.2d 244

274 Ala. 643

METZGER BROTHERS, INC., et al. v. ROYAL INDEMNITY CO. et al.

1 Div. 39.

Supreme Court of Alabama.

March 14, 1963.

Holberg, Tully & Hodnette, Mobile, for appellants.

Thornton & McGowin, Mobile, for appellees.

SIMPSON, Justice.

This is an appeal by the complainant from a final decree of the Mobile County Circuit Court, In Equity, dismissing a bill for declaratory judgment as to one of the respondents.

The bill sought a stay of a certain tort action against appellant on the law side of the circuit court; interpretation of a certain building or construction contract entered into between Metzgers (appellants) and Pate (appellee); and interpretation of two one-million-dollar liability insurance policies issued by Royal Indemnity Company in connection with the construction.

Demurrer filed by Pate was sustained to the bill and the bill, as amended, resulting in a final decree dismissing the bill for failure to amend.

From the allegation of the bill we draw the following facts:

Metzgers acquired two adjoining store buildings known as 104 and 106 Dauphin Street and desired to demolish the existing structures and build a new building. The property at 102 Dauphin Street, which was occupied by Friedman (the plaintiff in the suit pending at law) was separated from one of the newly acquired Metzgers buildings by a party wall, the property line running through the center of the wall. The building at 102 Dauphin Street was owned by one Mary E. Arnold and Louise O. Hollinger who had leased their premises to said Friedman. Metzgers entered into a written party wall agreement with Hollinger and Arnold giving Metzgers the right to remove the party wall in conjunction with their new building plans, to be rebuilt at Metzgers' expense, also including the obligation of Metzgers to put up a temporary partition wall.

Metzgers and Pate entered into a contract for construction of the new building, and work in connection with the demolition of the old buildings with the following exception:

'A portion of the work described in the specifications entitled and identified, 'Section 1. Demolition' is to be undertaken by Freeman Wrecking Company, Incorporated, pursuant to the terms of a contract dated January 30, 1959 between the said Freeman and the said Owner [Metzgers], and which said contract is by reference made a part hereof; it being agreed that pursuant to said Freeman contract, the said Freeman is to undertake the actual wrecking and demolition of said improvements and the removal of same consequent thereupon; all other duties and obligations imposed upon 'Contractor' under said SECTION 1. DEMOLITION remaining as the duty and obligation of the said Pate.'

The contract contained the following clause with relation to indemnity:

'Unless due solely to the negligence of Owner, its agents or employees, Contractor agrees fully to exonerate, indemnify and save harmless Owner, its successors and assigns, from and against any and all claims, demands, causes of action and judgments, based upon or arising out of damage and injuries (including death) to persons or property caused by, arising out of, or sustained in connection with the performance of the contract or by conditions created thereby, and among other things, if requested by Owner, to assume, without expense to Owner, the defense of any such claim, action or demand.'

Metzgers in a letter to induce Pate to enter the building contract agreed:

'We agree to indemnify and hold harmless you, your agents, servants employees and/or subcontractors, from and against any and all claims, actions, debt, loss, damage, expense or demands made or asserted by any owner or any tenant of the adjoining premises on the East (known as 102 Dauphin Street) or anyone claiming through or under them, or either of the [sic], any or all of which shall be directly or indirectly attributable to your undertaking and/or performing your contract obligations under said contract, including, without thereby limiting the generality hereof, claims for damages based on loss of business, loss of profits, loss of rents, interference with business, or otherwise, other than damage to building itself or its contents, or to persons, caused by negligence on your part in the manner of performing said contract. We further...