The Government cites in support of its contention. Valles v. Peoples-Pittsburgh Trust Co., 339 Pa. 33, 13 A.2d 19; and Engle v. Reider, 366 Pa. 411, 77 A.2d 621. The cited cases are not in point. In the instant case it is the inherent defect of the scaffold itself, because of its age and general deterioration under weather conditions that made it unsuitable for the job and thus a dangerous piece of equipment. Moreover, in a later case, Cooper v. Heintz Mfg. Co., 385 Pa. 296, 122 A.2d 699, the contention raised by the defendant was held to be a jury issue.
But what has been said as to the Government's negligence is equally applicable in determining that the third party defendants were negligent in directing decedent to use the scaffold in the performance of his work. The principle is one of concurrent negligence. See Potere v. City of Philadelphia, 380 Pa. 581, 112 A.2d 100.
However, the third party defendants, as shown by the evidence, were subject to the Workmen's Compensation Law of the Commonwealth of Pennsylvania, 77 P.S. § 1 et seq. Under Maio v. Fahs, 339 Pa. 180, 14 A.2d 105, and other cases, the limit of its liability as a third party defendant is the maximum compensation to be paid under the Pennsylvania statute.
The remaining question is whether under the written contract there is an indemnity agreement between the parties whereby the third party defendants became liable to the Government for all of the damages. The Government relies on the indemnity provision in the contract, Defendant's Exhibit 1, pages 3 and 4, which reads:
'In the event the contractor elects to use the crane service under the conditions specified above: (a) The contractor shall indemnify, hold harmless and defend the Government against any claims, demands or liabilities against the Government arising out of the use or operation of the crane during the performance of this contract, excepting only claims for injuries to Government employees not due to the fault or negligence of the Contractor; and (b) The planning, method of procedure, progress, supervision, or conduct of the work upon which the crane is engaged shall at all times be the responsibility of the contractor, and the Government shall not be in any way liable or responsible therefor.'
The Government contends that under the paragraph quoted the compensation law of Pennsylvania did not come into play, nor would the fact that the indemnitee, the United States, is found negligent require any different result. However, I cannot construe the indemnity provision of the contract as covering the use of the scaffold. The quoted paragraph refers to the use of the crane service. The written contract provided that the contractor could make use of the crane service if he so desired. The use of the scaffold was simply an oral understanding reached by the parties. The parties had a discussion as to the maintenance and repair of the scaffold, but no discussion as to liability in the event of the collapse of the scaffold. It is true they did indicate that it was subject to all terms and conditions of the paragraph concerning the crane service. Two recent decisions of the Court of Appeals of this Circuit are in point. One is Brown v. Moore, 3 Cir., 247 F.2d 711, wherein the Court of Appeals followed Perry v. Payne, 217 Pa. 252, 66 A. 553, 11 L.R.A., N.S., 1173. In that case the Supreme Court of Pennsylvania held that indemnity against personal injuries should not be construed to indemnify against the neglignece of the indemnitee unless it is so expressed in unequivocal terms. I find in the evidence in the instant case that there is no such expression. See also the very recent opinion of Judge Goodrich in Frankel v. Johns-Manville Corp., 3 Cir., 257 F.2d 508.
Counsel will submit an order for judgment in accordance with this opinion.
© 1992-2004 VersusLaw Inc.