Perry v. Payne
| Decision Date | 11 March 1907 |
| Docket Number | 192 |
| Citation | 66 A. 553,217 Pa. 252 |
| Parties | Perry, Appellant, v. Payne |
| Court | Pennsylvania Supreme Court |
Argued February 4, 1907
Appeal, No. 192, Jan. T., 1906, by plaintiff, from order of C.P. No. 1, Phila. Co., March T., 1905, No. 576, refusing to take off nonsuit in case of Edward Perry v. George F. Payne and Charles G. Wetter, trading as George F. Payne & Company. Affirmed.
Assumpsit on a bond. Before BEITLER, J.
The facts are stated in the opinion of the Supreme Court.
The court entered a compulsory nonsuit which it subsequently refused to take off.
Error assigned was refusal to take off nonsuit.
The assignment of error is overruled, and the judgment is affirmed.
Thomas Leaming, for appellant. -- The painter's presence on a stepladder in the elevator shaft was in pursuance of defendant's contract.
The elevator was being operated in pursuance of an arrangement between employees of both parties for the execution of defendant's contract.
The liability is covered by the contract and bond of indemnity Booth v. Dorsey, 208 Pa. 276; Woodbury v. Post, 158 Mass. 140 (33 N.E. Repr. 86).
Edward W. Magill, with him Ruby R. Vale, for appellees. -- Neither the building contract between the appellant and appellees nor the condition of the bond given in accordance therewith, either by express language or by implication, contemplates the indemnification of the appellant against the consequences of his sole and exclusive negligence or that of his employees: Mynard v. Syracuse, etc., R.R. Co., 71 N.Y. 180; Mitchell v. Southern Ry. Co., 24 Ky. L. Repr. 2388 (74 S.W. Repr. 216); Atwood v. Reliance Transportation Co., 9 Watts, 87; Manhattan Ry. Co. v. Cornell, 54 Hun, 292 (7 N.Y.S. 557); Indianapolis, etc., R.R. v. Brownenburg, 32 Indiana, 199; Flynn v. Philadelphia, 199 Pa. 476; Swing v. Munson, 191 Pa. 582.
The parties did not intend that the indemnitor should be liable where a third party recovers a judgment against the indemnitee as a result of the concurrent negligence of the indemnitor and the indemnitee: Springfield v. Boyle, 164 Mass. 591 (42 N.E. Repr. 333).
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT and STEWART, JJ.
By a contract in writing dated October 21, 1902, George F. Payne & Co., the defendants, agreed to erect for Edward Perry, the plaintiff and owner of the premises, a building at the southeast corner of Sixteenth and Chestnut streets; and if the site was delivered to them by a certain date they agreed to deliver the finished building to the plaintiff on December 15, 1903. By the terms of the contract Payne & Company promised to execute and deliver to Perry a bond in the sum of $140,000, indemnifying him, inter alia, "from all loss, cost or expense . . . arising from accidents to mechanics or laborers employed in the construction of said work, or to persons passing where the work is being constructed:" and in pursuance thereof the defendants gave their bond to Perry conditioned, inter alia, that they "shall protect and keep harmless the said Edward Perry of and from all loss, costs and damages, for non-fulfillment of same, or by reason of any liens, claims or demands for material for labor furnished for the construction of said work, or from damages arising from accidents to persons employed in the construction of, or passing near the said work, or for damages done to adjacent properties by reason of the construction of said work, or by depositing material in such a manner as to damage either the city or the individual."
Payne & Company entered upon their work, but failed to complete it within the specified time. The time limit was waived by mutual consent, and as certain parts of the building were completed and ready for occupancy they were delivered to Perry. In March, 1904, the entire building had not been finished, but Perry was in partial possession and had placed his employees in charge of the engine, machinery, elevators and every part of the building. A few of the employees of the contractors or of the subcontractors continued to work on the building until about June 1, 1904, when all their workmen were withdrawn from the building and although not formally delivered to him, Perry took possession of it. Owing to some defect in the plastering on the side of one of the elevator shafts, a piece of the plastering, about fifteen inches wide and twenty feet in height, had to be removed. The side of the shaft was then replastered and painted, but owing to further defects the architects refused to approve it, and it had to be removed and replastered again. This was done, and it necessitated the repainting of the shaft from the third floor to the bottom. Payne & Company were required under the contract to do the work. On June 17, 1904, on request of Payne & Company, Perry consented that their employees might use the elevator as a movable stage in painting the side of the shaft. Perry was then and had been for some months in the exclusive possession of the elevator, and his employees were running it. On the morning of June 18, 1904, two painters in the employ of a subcontractor of Payne & Company got on top of the elevator at the third floor for the purpose of painting the side of the shaft. As the painting within reach of the painters was completed, the boy operating the elevator would lower it, and as the work progressed, he continued to lower it until the bottom of the shaft was reached. There were then still about eight or ten feet of the shaft, the space occupied by the elevator, to be painted. The painters left the top of the elevator, and after the boy had hoisted it, they entered the shaft to complete the painting. Lynch, one of the painters, ascended a stepladder and while standing on it and engaged in painting, the boy lowered the elevator which struck Lynch and caused his death. His widow recovered a judgment against Perry for the negligence of the latter's employee in operating the elevator.
This is an action of assumpsit brought by Perry against Payne & Company on the bond of indemnity. The learned trial judge in the court below held that under the facts of the case Payne & Company were not liable to Perry on the bond for the damages recovered against him by Lynch's widow, and entered a nonsuit. The plaintiff has taken this appeal.
The learned counsel for the plaintiff concedes that at the time of the accident the elevator was being operated by a servant of the plaintiff for whose negligent act, resulting in the death of Lynch, the plaintiff was responsible. This admission was fully justified by the evidence, as well as by the judgment obtained against Perry. He claims, however, that the court below made an unwarranted distinction in holding that the servant, operating the elevator, might have been regarded as being in the employment of the defendants while the painters were on the top of the elevator and using it as a staging for painting, but that after they left the top of the elevator and began painting under it at the bottom of the shaft, the servant was then in the employ of the plaintiff and the elevator was under the management and control of the plaintiff. We do not think the counsel's position is well taken. From the facts, which are stated above, it is clear that whatever doubt may exist as to who was the employer of the boy -- Perry or Payne & Company -- while the painters were using the top of the elevator as a staging, or who, during that time, was in control of the elevator, there can be no question that after the painters had left the elevator and resumed their work at the bottom of the shaft, the boy was Perry's servant and as such was in control of and operating the elevator. As we have seen, at the time Perry gave permission to Payne & Company to use the elevator, he was in the exclusive control and management of it, and he consented to its use by them for staging purposes only, and when it was no longer needed for that purpose, Perry, through his servant, resumed the use of it for his own purpose. The painters did not need it while painting at the bottom of the shaft, and it had to be hoisted above the unpainted portion of the side of the shaft before they could do that part of the work. Having served the purpose for which the contractors had procured it from Perry, the owner of the building then continued to use the elevator in his own business when, by a negligent act of his servant in operating it, it caused the injury resulting in Lynch's death.
The principal and controlling question in the case depends upon the interpretation of the bond on which the action was brought. That part of the condition of the bond with which we are particularly concerned provides that the contractors "shall protect and keep harmless the said Edward Perry . . . from damages arising from accidents to persons employed in the construction of, or passing near, the said work." The plaintiff contends that this bond indemnifies him against all damages arising from injuries to any person employed about the work, whether the injuries were caused by the negligence of the contractors or their employees, or by the negligence of himself or his employees. He contends that the language can bear no other interpretation, that the liability against which he is indemnified does not depend upon who caused the injury, but must be determined by the class of persons to which the victim belongs, and that the indemnification covers all damages which he is required to pay arising from injuries to any person who is engaged in the construction of the building.
We cannot assent to this construction of the bond. It ignores the well-established rules applicable to the construction of such instruments, and results, as we think, in imposing a liability on the contractors...
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