Delaware Power & Light Co. v. Mayor of Wilmington

1 Thc Marshall case was decided in 1921 by the Superior Court of Delaware. It construed the following indemnity language as failing to exempt the lessor railroad from liability for its own negligence in setting fire to building leased to plaintiff-indemnitor, an operator of a canning business: “That in consideration of the issuance of this permit (to use the buildings) they shall and will save and keep harmless and indemnify the party of the first part (Railroad) from and against all claims for damages of whatsoever kind or nature arising in any manner or under any circumstances through the exercise of any right granted or conferred hereby, whether such damages be sustained by the parties of the second part or by other person or persons, coiporation or corporations which seek to hold the party of the first part liable.” The Marshall Court explained that “If it was the intention of the parties that the provision .should secure to the defendant company the exemption claimed for it in this action, it should appear from the language of the provision fairly inteipreted; o 5 o •> fu1.(-]lcr stated: “Clearly, exemption from liability for negligence or from fire is not expressed in the provision.” In 1944, the District Court of Delaware, in Smoke v. Turner Construction Co., 54 F.Supp. 369 , upheld an indemnification agreement in general or all-inclusive language protecting a general contractor from its own negligence and explained (p. 371): “The Delaware law does not require that indemnity from one’s own negligence be expressed in so many words, but it is sufficient if such intention appear from a fair construction of the instrument” (citing Marshal]). In 1948, the editor of a note in 175 A.L.R. listed the Marshall *427 Note 1 continued- case on page 30, note 11, under the proposition that “where the parties tail to refer expressly to negligence in their contract such failure evidences the parties’ intention not to provide for indemnity for indemnitee’s acts.” Likewise, in 1952, in Chicago & N. W. Ry. Co. v. Chicago Packaged Fuel Co., 7 Cir., 195 F.2d 467 , at p. 469, the Court used Marshall to support the statement that “Some (courts) hold that general words are not sufficient " 0 that “specific reference to negligence must be made or the intent shown by unequivocal terms.” See, also, dissent in 1960 case of Metropolitan Paving Co. v. Cordon Hcrkcnhaff b Associates, Inc., 66 N.M. 41 , 341 P.2d 460 , 464. In Pan American World Airways, Inc. v. United Aircraft Corporation, supra, our Supreme. Court, in 1960, mentioned Marshall while construing Connecticut law and thought it stood for the principle that indemnification agreements “if possible arc construed not to confer immunity from liability” to the indemnitee fiom the consequences of its negligence. The Court failed to mention the Smoke ease. In 1962, the District of Delaware, in interpreting Delaware, law, in Alternas v. Pennsylvania Railroad Company, 210 F.Supp. 834 , failed to mention the Smoke ease, decided in 1944 by the same Court, but did rely on the language of Pan American and its citation of Marshall when it stated (p. 835): ‘‘The Courts very generally refuse to arrive at such a result unless it is made absolutely clear that the intention of the party drawing the contract is to indemnity himself against the consequences of his own negligence.” This Court' understood Delaware law to require “strict construction” and found that the indemnitee had not shown by “crystal clear” language that it “intended” to protect itself against accidents to its own employees.”