Vannoy v. City of Warren , 2 Mich. App. 78 ( 1965 )

2 Mich. App. 78 (1965) 138 N.W.2d 520

VANNOY
v.
CITY OF WARREN.
JOHNSON & ANDERSON, INC.
v.
NELSON M. SHARROW EXCAVATING CO., INC.

Docket Nos. 51, 52.

Michigan Court of Appeals.

Decided December 20, 1965. Leave to appeal denied February 24, 1966.

Ward, Plunkett, Cooney, Rutt & Peacock (John D. Peacock and Charles T. McGorisk, of counsel), for defendant Johnson & Anderson, Inc.

Nunneley, Nunneley & Hirt, for defendant City of Warren.

Alexander, Buchanan & Conklin (John A. Kruse, of counsel), for third-party defendant Nelson M. Sharrow Excavating Company, Inc.

Leave to appeal denied by Supreme Court February 24, 1966. See 377 Mich. 703.

T.G. KAVANAGH, J.

Plaintiff's deceased husband was an employee of the Nelson M. Sharrow Excavating Co., Inc., which had contracted with the defendant city of Warren to do certain work in connection with the installation of a sewer. On February 21, 1961, the plaintiff's decedent in the course of his employment descended into a manhole, was allegedly overcome by gas, and fell into 7 to 10 feet of water where he died. The plaintiff sued the city of Warren and its engineers, Johnson & Anderson, Inc., under the wrongful death statute^[1] alleging negligence on the part of each.

Pursuant to court order, the defendants filed third-party complaints against the Sharrow Excavating Co., on the basis of an indemnity agreement. Thereafter the defendants filed a motion to amend their third-party complaint to add a count for negligence against Sharrow. The trial court denied the motion and from this ruling this appeal is taken.

The issue raised was whether an employer covered by the workmen's compensation act^[2] could be held to respond in damages as a joint tort-feasor for negligence in addition to his liability under the act.

At the time the briefs were submitted this was a question of first impression in Michigan. However, the Supreme Court has since resolved the issue in the case of Husted v. Consumers Power Co. (1965), 376 Mich. 41.

In that case Husted was injured when the crane he was operating came in contact with power lines owned by defendant Consumers. Consumers filed a third-party complaint against Husted's employer Hertel-Dego charging negligence on the employer's part and demanding contribution. The Court stated at page 56 of the opinion:

"Thus if Husted could not sue his employer (Hertel-Dego), and we know he could not, Hertel-Dego and Consumers cannot be joint tort-feasors by law. Consumers therefore cannot sue Hertel-Dego for contribution should it be held to respond to plaintiff in damages."

Accordingly the trial judge here was correct in refusing to permit amendment of appellants' third-party complaint to include negligence.

The appellee has filed a cross appeal in this case. As third-party defendant the appellee filed a motion for summary judgment on the grounds that the indemnity agreement cannot be construed to indemnify third-party plaintiffs against their negligence. The trial judge denied the motion stating the indemnity agreement ought to be construed at the trial.

The law on this point is well settled in Michigan. The Supreme Court said in the case of Title Guaranty & Surety Co. v. Roehm (1921), 215 Mich. 586, at p 592:

"``Indemnity contracts like other contracts are to be so expounded as to effectuate the intentions of the parties. Thus in ascertaining the intention of the parties, the court must take into consideration not only the language of the contract but the situation of the parties and the circumstances surrounding them at the time the contract was made.' 22 Cyc, p 84."

In his opinion on the motion for summary judgment the trial court said: "The court cannot at this preliminary juncture determine with finality that the terms are equivocal, ambiguous, and uncertain * * * construction thereof must await the trial."

Whatever facts defining the "situation of the parties and the circumstances surrounding them" may be properly established at the trial are appropriate for the court's consideration.

The trial court is therefore affirmed.

The plaintiff-appellee alone having prevailed in full, may tax her costs against the defendants city of Warren and Johnson & Anderson.

McGREGOR, P.J., and FITZGERALD, J., concurred.

NOTES

[1] See CL 1948, § 691.581 et seq. (Stat Ann 1959 Cum Supp § 27.711 et seq.). — REPORTER.

[2] See CL 1948, § 411.1 et seq., as amended (Stat Ann 1960 Rev § 17.141 et seq., as amended). — REPORTER.