November 10, 1964
Appeal, No. 192, March T., 1964, from judgment of Court of Common Pleas of McKean County, June T., 1958, No. 141, in case of Paul Coleman, Jr. v. City of Bradford. Judgment affirmed.
Thomas R. Eddy, for appellant.
R. T. Mutzabaugh, with him F. M. Nash, and Nash & Nash, and Mutzabaugh & Mutzabaugh, for appellee.
Before Bell, C.j., Musmanno, Jones, Cohen, Eagen, O'brien and Roberts, JJ.
[ 415 Pa. Page 558]
OPINION BY MR. CHIEF JUSTICE BELL
Plaintiff brought an action of assumpsit against the City of Bradford under an agreement of indemnity. The lower Court dismissed his claim. Plaintiff appeals, although it is not clear from the record whether he is appealing from an order, or a judgment, or a decree of the lower Court, since that Court used each of these words from time to time, or interchangeably.
The Department of Forests and Waters agreed to widen, deepen and improve the East Branch of Tunungwant Creek, which runs through the City of Bradford, on condition that the City, inter alia, indemnify the Commonwealth of Pennsylvania. Thereupon the City adopted a resolution which pertinently provides: "... the said City Council of the said City of Bradford do hereby guarantee to indemnify, protect and save free*fn* the Commonwealth of Pennsylvania, Department of Forests and Waters, and/or its contractors and agents jointly and severally from and against any and all claims, damages, demands, or actions in law or in equity
[ 415 Pa. Page 559]
liability there is a right of recovery as soon as a liability is incurred; where it is against loss by reason of a liability there is no right of recovery until a loss occurs.... In 16 Am. & Eng. Ency. of L. (2d ed.) 178, the rule is thus stated, "where the contract is strictly one of indemnity the indemnitee cannot recover until he has suffered actual loss or damage; the mere incurring of liability gives him no such right; but where the contract is to protect against liability, the indemnitee may recover as soon as his liability has become fixed and established, even though he has sustained no actual loss or damage at the time he seeks to recover."'"
In Wilbur Trust Co. v. Eberts, 337 Pa. 161, 10 A.2d 397, the Court construed an indemnity agreement which is very similar in its language and coverage to the resolution of the Council of the City of Bradford. The Court said (page 167): "... the distinction between an indemnity against loss and an agreement of guaranty or suretyship, to answer for another's default, is a substantial one and is firmly imbedded in our law. Here appellees obligated themselves to 'save, keep harmless and indemnify... of and from all actions, costs, damages, losses ...'. The language of the bond is that of indemnity, not suretyship. ..." Accord: Burke v. North Huntingdon Township, 390 Pa. 588, 136 A.2d 310 (footnote page 598); Emery v. Metzner, 191 Pa. Superior Ct. 440, 445, 156 A.2d 627, 630; 2 Williston on Contracts (Rev. Ed.) § 402, p. 1157, § 403, p. 1159; cf. also: Pittsburgh's Petition, 243 Pa. 392, 398, 90 A. 329.
Mr. Justice COHEN concurs in the result.
Order affirmed, without prejudice to further proceedings by Coleman, if loss occurs.