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WESTINGHOUSE ELECTRIC COMPANY v. MURPHY (04/18/67)

decided: April 18, 1967.

WESTINGHOUSE ELECTRIC COMPANY
v.
MURPHY, INC., APPELLANT



Appeal from judgment of Court of Common Pleas No. 6 of Philadelphia County, June T., 1964, No. 1992, in case of Westinghouse Electric Company v. Murphy, Inc.

COUNSEL

T. E. Byrne, Jr., with him Robert K. Wood, and Krusen, Evans and Byrne, for appellant.

John B. H. Carter, Aaron D. Blumberg, Edward W. Madeira, Jr., and Pepper, Hamilton & Scheetz, for appellee.

Bell, C. J., Musmanno, Jones, Eagen, O'Brien and Roberts, JJ. Opinion by Mr. Justice Roberts.

Author: Roberts

[ 425 Pa. Page 167]

James Rhodes was an employee of Murphy, Inc., a concern engaged in the painting and glazing business. On December 14, 1962, Rhodes was injured while engaged in work which Murphy had agreed to perform for Westinghouse Electric at the Westinghouse plant in Lester, Pennsylvania. Rhodes sued Westinghouse for the injury and Westinghouse joined Murphy as an additional defendant. The action by Rhodes was settled for $67,500, half of which was paid by Murphy's insurer and half by Westinghouse's insurer. At the time of settlement, it was agreed by Westinghouse and Murphy, that the dispute between them as to the liability for Rhodes' claim should be determined in subsequent litigation between them.

Thereafter, Westinghouse filed an action of assumpsit for $33,750 against Murphy alleging that the terms of the contract between them required Murphy to indemnify Westinghouse for the amount paid by it in settlement of Rhodes' injury despite the fact that the injury was due to the negligence of Westinghouse. Murphy's answer denied this contractual obligation and counterclaimed for the $33,750 paid by its insurer in settlement of Rhodes' claim. A jury trial was waived, no testimony taken and the case submitted to the court below on a stipulation. This is an appeal from the

[ 425 Pa. Page 168]

    judgment of the court below granting the prayer of Westinghouse's complaint and denying that of Murphy's counterclaim.

Stated simply the legal question before us is whether the contract under which Murphy was performing work for Westinghouse included an enforcible term providing that Murphy would indemnify Westinghouse for liability arising out of the job created by Westinghouse's negligence. In order to answer this question it is necessary to describe in some detail the history of business relations between Murphy and Westinghouse prior to the date of Rhodes' accident.

Westinghouse is the owner of a large facility located at Lester, Pennsylvania which requires continuing maintenance. On some eighty occasions between November 1956 and November 1962 Westinghouse had contracted with Murphy to perform aspects of this work. In connection with each of these eighty jobs, Westinghouse issued to Murphy a purchase order form. On the face of the purchase order form under the heading "Instruction to Supplier" are seven items each in fine print. Item number seven is as follows: "Terms. Subject to terms and conditions printed on the back, and to specifications, drawings and additional terms and conditions referred to herein and/or attached hereto." The reverse side of the purchase order is almost completely taken up by fifteen finely printed "terms and conditions". The fifteenth item is as follows: "When Seller during the performance under this order will send its employes onto Buyer's premises, the provisions of Appendix D, Westinghouse Form 29181 shall apply, whether or not Appendix D is attached hereto. (Buyer will furnish copies on request.)"

Appendix D in pertinent part provides:*fn1 "(b) Seller shall . . . indemnify and ...


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