Tolmie v. Fidelity & Casualty Co.

This action is brought by the plaintiff, as surviving partner of the firm of Wood & Tolmie, against the defendant, upon an employer’s liability policy issued June 15, 1895, under which, among other things, the defendant agreed to indemnify the assured against liability for damages on account of fatal or nonfatal injury accidentally suffered by any employé or employes of the assured, and, further, by„a rider attached to and forming part of the said policy, against liability of the assured to workmen employed by other contractors and to the public, arising out of personal injuries caused by the assured or by the assured’s own workmen, “but not caused by a contractor’s or subcontractor’s workmen." On November 2, 1895, the assured entered into a contract with the city of New York for the. construction of a public overlook in Corlears Hook Park. By that agreement the assured undertook to keep the place “properly guarded for the prevention of accidents and at night to put up and keep suitable and sufficient lights.” They further agreed to- “indemnify and save harmless [the city] against and from all suits and actions of every name and description brought against it and all costs and damages to which it may be put by reason or on account of any injuries or damages to the person or property of another by or from the said contractors, their servants or agents, in the construction of said work or by or in consequence of any negligence in guarding the same, or of any improper material used in -its construction, or by or on account of any act or omission on the part of the said parties of the second part, or their agents.” It was further agreed, under said agreement, that the city might retain from moneys due to the contractors such sums as might be deemed necessary by its commissioners “until all suits or claims for damages as aforesaid shall have been settled, and evidence to that effect furnished to the satisfaction of said commissioners.” On the 6th of November, 1895, the assured entered into a contract with M. Kane & Son, under winch the latter agreed to do all the excavating, grading, etc., necessary to complete the building known as “Overlook,” Corlears Hook Park, on or before the 19th day of November, 1895. In that agreement M. Kane & Son undertook “to be responsible for any accident caused to persons or property through -inattention on our part, defective materials or the carelessness or neglect of our workmen while in the performance of this contract, and to be responsible for the violation of any laws or corporation ordinances.”

The plaintiff contends that by reason of the failure and refusal of the defendant to defend the actions on behalf of the plaintiff brought by McGann against the city, and by the city against the plaintiff, it cannot now question the plaintiff’s liability for damages on account of the injury sustained by McGann. The plaintiff upon the trial introduced in evidence the judgment roll in the case of McGann against the city, but offered no proof dehors the record as to how the accident happened; that is, whether by the negligence of himself or of his employé, or that of the subcontractor or his workmen. The policy indemnified the plaintiff only against liability for personal injuries received by the public, “caused by the assured or by the assured’s workmen, but not caused by a subcontractor or a subcontractor’s workmen.” It follows, therefore, that unless the plaintiff proves that the injury, and hence his liability, resulted only from the negligence of himself or of his employe, and unless the plaintiff proves, as alleged in his complaint, that McGann’s injury was not caused by a subcontractor or a subcontractor’s workmen, no recovery can be had against the defendant. Mayor v. Brady, 151 N. Y. 611 , 45 N. E. 1122 . The proofs show that McGann was injured by falling into' the excavation, which was unguarded, and that this excavation was part of the work which Kane & Son, the subcontractors, had agreed with the plaintiff to do, and there was no evidence that the work of the subcontractor had been completed at the time. It may well be that the negligence of the subcontractor or his workmen was the cause of the accident. Mayor v. Brady, supra, recognizes the necessity of independent proof as to the negligence of the contractor in order to establish that fact in this action, and that such fact is not shown by merefy putting in evidence the judgment roll against the city. The complaint in that action does not even charge negligence of this plaintiff or his agents. This omission in the proofs, I think, is fatal to a recovery in this action.

Another serious objection to plaintiff’s claim is the fact that the recovery against the plaintiff by the city was had by reason of an action brought upon the undertaking given for the purpose of procuring a release of moneys tied up by the city, in which the plaintiff agreed to indemnify and hold harmless the city from and against any claim on account of the injuries to McGann, “whether groundless or otherwise,” and “to pay and discharge any judgment recovered on account of such claim, whether groundless or otherwise.” It is a complete answer to the contention that the defendant’s failure to defend the action brought by the city against the plaintiff on the undertaking precludes the defendant from questioning the liability of the plaintiff on account of a claim for damages arising from injuries within the contemplation of the policy, to say that any defense which the defendant might have interposed in that action, based upon the absence of negligence of this plaintiff, or upon the negligence of a subcontractor or his workmen, would have been futile. It would not have been available in that action, because the undertaking bound

In view of my conclusions on the points discussed, it becomes unnecessary to refer to the other interesting questions raised in this case. A judgment is directed to be entered for the defendant, with costs.

Judgment for defendant, with costs.