Appeal, No. 141, Jan. T., 1952, from judgment of Court of Common Pleas No. 6 of Philadelphia County, Dec. T., 1950, No. 4084, in case of Tidewater Field Warehouses, Inc., v. Fred Whitaker Company, Inc. Judgment affirmed.
Walter B. Gibbons, for appellant.
Howard R. Detweiler, with him Frank R. Ambler, for appellee.
Before Drew, C.j., Stearne, Jones, Bell, Chidsey and Musmanno, JJ.
OPINION BY MR. CHIEF JUSTICE DREW
This action in assumpsit is another phase of the legal proceedings arising out of the death of Hugh E. Donnelly for which his administratrix recovered judgments totaling $42,478.00 against Tidewater Field Warehouses, Inc., plaintiff herein. See Donnelly v. Fred Whitaker Co., 364 Pa. 387, 72 A.2d 61. The sole question here is whether the indemnity clause in a lease between Tidewater and Fred Whitaker Company, Inc., defendant, indemnified Tidewater from losses resulting from its own negligence. The learned court below held that it did and accordingly entered judgment on the pleadings for Tidewater. This appeal followed.
Whitaker is an importer and processer of raw wool. In order to avoid paying import duty immediately on the arrival of the wool, it is stored in a bonded warehouse subject to joint control by the warehouseman and the U.S. customs officials. Pursuant to this practice
Whitaker entered into a lease and warehouse agreement with Tidewater on July 15, 1946. By the terms of those agreements Whitaker leased the warehouse to Tidewater and in return Tidewater agreed to store only Whitaker's wool therein. It was further provided that Whitaker would supply all labor necessary for handling the wool but that the labor would be subject to the exclusive control of Tidewater.
On May 1, 1947, Donnelly, a customs inspector, was killed when a bale of wool was pushed down and fell on him. Suit was brought against Whitaker which brought on the record Tidewater as an additional defendant. The jury returned verdicts against both Whitaker and Tidewater on which judgments were entered. On appeal we reversed as to Whitaker holding that by the terms of the agreement the employe whose negligence caused Donnelly's death was the exclusive agent of Tidewater at the time of the accident and accordingly it alone was liable. We recognized the existence of the indemnity clauses in the agreements but held further that "Tidewater's right to indemnity must be determined in an action on the contract and cannot be adjudicated in this trespass suit." It is to determine the rights growing out of those clauses that Tidewater has brought this action in assumpsit against Whitaker. It is Whitaker's position that the indemnity clauses were designed only to protect Tidewater from claims arising out of its occupancy of the premises but not to include claims arising as a result of acts of negligence on its part. We are of the opinion that the lower court correctly rejected this argument.
The law on this subject is quite clear. In the absence of a clear expression of intent to the contrary a contract of indemnity will not be construed to indemnify against the negligence of the indemnitee: ...