City of Hartford v. the Century Indemnity Co.

The defendant gave bond to save the plaintiff harmless from any damages resulting from the work of the principal as a drain layer. One Catherine McCourt recovered a judgment against the plaintiff as a result of injuries sustained by her at a place where the drain layer had excavated and refilled for a sewer connection.

These facts were not disputed. The defendant filed an answer in which it was alleged that the injuries sustained were caused by the negligent acts of the plaintiff and not by those of the drain layer.

The agreed statement of facts establishes that, after the excavation and refilling, the drain layer continued to take care of the subsidence for some time. Later, without notice to the drain layer, the city made repairs at the point in question. It is clear that the injuries resulted, not from the failure of the drain layer to make repairs, but because the city attempted to make them and did so in a negligent manner. In other words, the injuries resulted from the negligent act of the plaintiff. No recovery may be had for such injuries in the absence of a clear intention to that effect expressed in the contract.

31 Corpus Juris, Indemnity, Section 27(d).

No such intention has been found by me. The special defense is good.

Judgment for the defendant.