Pennsylvania Steel Co. v. Washington & Berkeley Bridge Co.

• Decision Date: 02 April 1912
• Citation: 194 F. 1011
• Parties: PENNSYLVANIA STEEL CO. v. WASHINGTON & BERKELEY BRIDGE CO.
• Court: U.S. Court of Appeals — Fourth Circuit

194 F. 1011

PENNSYLVANIA STEEL CO. v. WASHINGTON & BERKELEY BRIDGE CO.

United States District Court, N.D. West Virginia.

April 2, 1912

[Copyrighted Material Omitted]

Faulkner Walker & Woods and Lane & Keedy, for plaintiff.

Wagaman & Wagaman and Brown & Brown, for defendant.

DAYTON District Judge (after stating the facts as above).

It is insisted by counsel for demurrant that this declaration is one in trespass on the case alleging a duty owing it by the defendant, negligence on defendant's part in the performance of that duty, and resultant injury to plaintiff in consequence; that assumpsit, and not trespass on the case will lie to secure indemnity and contribution wherein allegations that defendant 'expressly or impliedly promised to pay' are essential, and wholly wanting and nonessential in the action of case. Therefore demurrant insists:

First. The plaintiff's own case, as made out by the declaration and each count thereof, together with the record in the Benning Case, shows that the plaintiff is guilty of negligence which directly contributed to the injuries, the damages for which are sought to be recovered in this suit.

In support of this proposition, counsel cite the facts that Benning, in his action, charged the plaintiff Steel Company with negligence, which was denied by its plea of not guilty, but which was conclusively established by the verdict of the jury and the judgment of the court of competent jurisdiction trying the issue joined on such plea. Therefore, although it may be assumed that the Bridge Company was also negligent in the premises, the well-known rule that in pari delicto potior est conditio defendentis must be given application here. This rule is based upon the principle of public policy that there is 'no contribution between wrongdoers.' It is well settled, however, that this principle applies appropriately only to cases where there has been intentional violation of law, and where the wrongdoer is to be presumed to have known that the act was unlawful. It fails when the injury grows out of a duty resting primarily upon one of the parties, and but for his negligence, there would have been no cause of action against the other. Anderson, Dic. of Law, 252; Chicago v. Robbins, 67 U.S. 418, 17 L.Ed. 298; Robbins v. Chicago, 4 Wall. 657, 18 L.Ed. 427; King v. U.S., 1 Ct.Cl. 38; Town of Hamden v. New Haven & N. Co., 27 Conn. 158; Severin v. Eddy, 52 Ill. 189; Pfau v. Williamson, 63 Ill. 16; Gridley v. City of Bloomington, 68 Ill. 47; Catterlin v. City of Frankfort, 79 Ind. 547, 41 Am.Rep. 627; Portland v. At. & St. L.R. Co., 66 Me. 485; Ches. & O. Canal Co. v. Allegheny Co. Com'rs, 57 Md. 201, 40 Am.Rep. 430; Gray v. Boston Gaslight Co., 114 Mass. 149, 19 Am.Rep. 324; Churchill v. Holt, 127 Mass. 165, 34 Am.Rep. 355; City of Wabasha v. Southworth, 54 Minn. 79, 55 N.W. 818; Brooklyn v. Brooklyn City R. Co., 47 N.Y. 475, 7 Am.Rep. 469; Oceanic S.N. Co. v. Compania, 134 N.Y. 461, 31 N.E. 987, 30 Am.St.Rep. 685; Philadelphia Co. v. Central Traction Co., 165 Pa. 456, 30 A. 934; Maxwell v. L. & N.R. Co., 1 Tenn.Ch. 8; Batty v. Duxbury, 24 Vt. 155; Ladd v. Waterbury, 34 Vt. 426; City of Norwich v. Breed, 30 Conn. 535; C. & N.W. Ry. Co. v. Dunn, 59 Iowa, 619, 13 N.W. 722; Milford v. Holbrook, 9 Allen (Mass.) 17, 85 Am.Dec. 735; Minneapolis Mill Co. v. Wheeler, 31 Minn. 121, 16 N.W. 698; Old Colony R. Co. v. Slavens, 148 Mass. 363, 19 N.E. 372, 12 Am.St.Rep. 558; Houston & T.C. Ry. Co. v. Williams (Tex. Civ. App.) 31 S.W. 556.

Careful consideration of these and other similar authorities must inevitably lead to the conclusion that in negligence cases based not upon willful wrongdoing, but growing out of legal duties and obligations-- acts not malum in se but malum prohibitum-- a clear distinction must be drawn between the liability of the party primarily negligent and that of one secondarily so to the extent of being liable to a third party injured. In such case, it is well settled that the second party, while he may not escape liability to the third party injured, may hold the first party, primarily negligent, for indemnity. Such ruling is sound in both law and good morals, in that it secures greater care on the part of all engaged in the work, and lessens the danger of accidents. While this is true, it is also true that the question as to which party is primarily negligent must be carefully determined from the facts in each case. It by no means always follows that the owner, because he is having the work done, is so negligent. The contractor may, by his contract, be made wholly independent of the owner's control or direction, his personal act, without knowledge or consent of the owner, may be the direct cause of injury, a direct result of his want of care, proper qualifications, adequate knowledge of or failure to properly inspect the work, its conditions and surroundings, which he is undertaking to do. This case presents an illustration of the difficulty that may arise in so determining liability. It is insisted by defendant that there is no allegation that this pier 10 was unsafe because of improper workmanship or materials, but that it collapsed solely because the cement in it was not given time to harden. Counsel for plaintiff insist that, while this may be true, the plaintiff in seeking to erect the superstructure on it was doing so under the direction of the defendant's engineer and agent. Per contra counsel for defendant insist that this engineer was not its agent, but an independent contractor of it under the express terms of a contract existing between it and such engineer. Without expressing any opinion as to these contentions, it seems clear that the mere statement of them is sufficient to show that these questions are purely ones of fact and cannot be determined upon demurrer, even under the terms of the stipulation filed.

Under the terms of this stipulation, I am authorized, so far as I deem pertinent in passing upon this demurrer, to consider the record of the Benning Case with the evidence and contract introduced therein. This stipulation cannot permit me to determine the facts that may or may not be presented in this cause upon trial. They may or may not be the same as those introduced on the trial of the Benning Case. I can only say that I regard the allegations of the declaration to be sufficient to charge this engineer to be the agent of defendant, and acting as such, to have directed and advised plaintiff to impose the superstructure upon this pier at the time he did without proper knowledge and inspection of its immatured condition. So far as the form of action is concerned, I find in the Robbins Case, hereinbefore cited from 4 Wall. 657, 18 L.Ed. 427, the declaration was in case, not assumpsit, and, so far as I can find in all the reported cases of the kind, under common-law pleading, such form of action has been resorted to and sustained.

The reason seems to be based upon the principle that while indemnity is sought, and the measure of recovery may be fixed by the amount of the recovery had against the plaintiff seeking indemnity, yet the original and fundamental basis of recovery is not contract, but tort to indemnify for which no promise express or implied arises, warranting resort to the action of assumpsit. This principle I regard as sound, and I am in full accord with it.

This disposes substantially of all the points relied upon in demurrer, except the second, which by reason of the stipulation it is insisted may be considered. While it is doubtful whether it can be so considered, because the contract upon which it is based between plaintiff and defendant is not made a part of the declaration, but only allegations are made of its execution and of its terms sufficient to introduce it as a part of the evidence necessary to recovery, yet, inasmuch as the question raised touching it clearly appears to be one that immediately upon its introduction will arise and require this court's construction, I have deemed it best to consider it here and now. The tenth paragraph of this contract is as follows:

'As according to the terms of the accompanying specifications, which form a part of this contract, the party of the second part (plaintiff Steel Company) is to indemnify the party of the first part (defendant Bridge Company) against all liability or damage on account of accidents, whether occasioned by the omission or negligence of itself, its agents, or its workmen or otherwise during continuance of this agreement, it is hereby agreed that the party of the second part shall be promptly and duly notified in writing by the party of the first part of the bringing of any such suit or suits, and shall be given the privilege of assuming the sole defense thereof. The party of the second part is to pay all judgments recovered by reason of accidents in any such suit or suits against the party of the first part, including all legal costs, court expenses and other like expenses.'

The paragraph of the specifications referred to is as follows:

'Contractor will be required to give a satisfactory bond in the sum of $10,000

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