National Pneumatic Co. v. Industrial Cafeterias, Inc.

• Decision Date: 14 February 1964
• Citation: 196 N.E.2d 321,347 Mass. 61
• Parties: NATIONAL PNEUMATIC CO., Inc. v. INDUSTRIAL CAFETERIAS, INC.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 321

196 N.E.2d 321

347 Mass. 61

NATIONAL PNEUMATIC CO., Inc. v. INDUSTRIAL CAFETERIAS, INC.

Supreme Judicial Court of Massachusetts, Suffolk.

Argued Dec. 6, 1963.

Decided Feb. 14, 1964.

Sturtevant Burr, Boston, for plaintiff.

William H. Clancy, Boston (Thomas D. Burns, Boston, with him), for defendant.

Before WILKINS, C. J., and SPALDING, WHITTEMORE, CUTTER and SPIEGEL, JJ.

SPIEGEL, Justice.

This is an action of contract wherein the plaintiff seeks to recover damages for an alleged breach by the defendant of an agreement to hold the plaintiff harmless from all liability arising out of certain activities of the defendant and for an alleged breach by the defendant of an agreement to carry liability insurance. The judge of the Superior Court sitting without a jury made a finding for the defendant. The case is before us on the plaintiff's exceptions to the denial of its requests for rulings.

The action was tried on written documents and agreements of counsel. On October 15, 1952, the plaintiff and the defendant entered into a written agreement which recited that the defendant had been engaged for some time 'in the business of catering, serving and supplying food and soft drinks and refreshments' and that the plaintiff operated a manufacturing plant in Boston. The plaintiff was to furnish space in its plant to the defendant to conduct a 'food servicing operation' from which employees, agents, guests, and officers of the plaintiff would be able to purchase food and other refreshments. The agreement also contained the following clauses: 'Sixth: Concessionaire [the defendant] agrees to be solely responsible for a the quality of food supplied and shall hold the Company harmless and free from all liability and claims of liability of any nature whatsoever arising out of or in connection with the service of food, drink and refreshments by Concessionaire and its agents and servants during the life of this contract or any extension or renewal thereof. Seventh: Concessionaire does hereby assume and agree to pay all expenses which shall be incurred in the maintenance and operation of said food servicing operation, except as otherwise set forth in this agreement, including all salaries of its employees and federal and state social security and unemployment taxes applicable to all employees in said food servicing operation. Concessionaire agrees at all times to carry compensation insurance covering all of its employees and public liability and product liability insurance and to pay the premiums on said policies as and when they shall become due. Concessionaire and Company shall be named as the insured in said public liability and product liability policies and Concessionaire agrees to deliver to the Company certificates of such insurance, copies of which are attached to this agreement. Concessionaire agrees to maintain insurance of at least the limits set forth in said certificate throughout the life of this agreement or any extension or renewal thereof. Concessionaire shall operate under and secure at its own expense all necessary licenses and permits.'

It appears from the exhibits that on or about December 18, 1957, one Anna Riley, an employee of the defendant, slipped and fell on the...