BROTHERTON CO. v. PATTERSON-EMERSON-C., 406 Pa. 400 (1962)

178 A.2d 696

Brotherton Construction Co., Appellant, v. Patterson-Emerson-Comstock, Inc.

Supreme Court of Pennsylvania.January 15, 1962.
March 13, 1962.

Contracts — Indemnity — Negligence of indemnitee — Intent of parties.

In this action of assumpsit by a general contractor on a construction contract with its subcontractor, in which it appeared

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that the subcontract provided “The Subcontractor agrees: . . . To indemnify the Contractor against the claims of all material-men and employees of the Subcontractor, including Court costs and attorney’s fees incurred in the defense of any litigation instituted by any . . . employee . . . of the Subcontractor, to which the Contractor is made a party”; and during the course of the performance of the contract an employe of the subcontractor was seriously injured as a result of the contractor’s negligence, and immediately prior to the trial of a trespass action the contractor paid $15,000 in settlement plus suit costs and an attorney’s fee of $2,400 and subsequently instituted this action to recover such payments, it was Held that (1) the contract of indemnity did not express any clear intent of the parties to indemnify against the negligence of the indemnitee and (2) in the absence of such clear expression of intent a contract of indemnity will not be construed to indemnify against the negligence of the indemnitee and (3) the court below had properly dismissed the action on the pleadings.

Before BELL, C. J., MUSMANNO, JONES, COHEN, EAGEN and O’BRIEN, JJ.

Appeal, No. 26, Jan. T., 1962, from judgment of Court of Common Pleas of Chester County, July T., 1960, No. 105, in case of Brotherton Construction Co. v. Patterson-Emerson-Comstock, Inc. Judgment affirmed.

Same case in court below: 23 Pa. D. C.2d 783.

Assumpsit.

Defendant’s preliminary objection in nature of demurrer to complaint sustained and judgment entered, opinion by LICHTENFELD, J. Plaintiff appealed.

G. Clinton Fogwell, Jr., with him Lawrence E. Wood, an Reilly, Fogwell Lentz, for appellant.

George J. McConchie, with him W. Edward Greenwood, and Hodge, Hodge Cramp, and Gawthrop Greenwood, for appellee.

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OPINION BY MR. JUSTICE MUSMANNO, March 13, 1962:

The judgment of the court below is affirmed on the able opinion of Judge LICHTENFELD of the Court of Common Pleas of Chester County.