Appeal from the Circuit Court of Will county; the Hon. JAMES
V. BARTLEY, Judge, presiding. Affirmed.
JUSTICE SOLFISBURG DELIVERED THE OPINION OF THE COURT.
Rehearing denied September 12, 1958.
This is an appeal by defendant, Robert R. Anderson Company, a corporation, from a portion of a judgment entered in the Circuit Court of Will county on three counter-claims in this cause.
The plaintiffs, Veronica F. Gay and John J. Gay, filed this suit against the City of Joliet, Illinois, a municipal corporation, S.N. Nielsen Company, a corporation, and Robert R. Anderson Company, a corporation, for property damage caused by blasting done in connection with the installation of a sewer in the City of Joliet. For convenience, S.N. Nielsen Company is referred to hereinafter as "Nielsen" or the prime contractor, and Robert R. Anderson Company is referred to as "Anderson" or the sub-contractor. The three defendants conceded liability to the plaintiffs in the first instance, and by stipulation a judgment (referred to in this opinion as the "Gay judgment") in the sum of $5,000 was entered in favor of plaintiffs and against all three defendants, and a stay of execution to permit litigation of certain counter-claims was provided.
The city filed counter-claims against both Nielsen and Anderson claiming each was required to indemnify it against the Gay judgment. Each contractor filed a counter-claim against the other. Nielsen claimed that it should be indemnified against the Gay judgment by Anderson because Anderson actually set off the explosives, and Anderson claimed damages based upon Nielsen's breach of its contract to procure insurance protection for Anderson. The issues presented by the counter-claim were submitted to the trial judge on the pleadings, the prime contract, the sub-contract, certain exhibits relating to insurance, and certain stipulations of the parties. Thereafter the trial judge entered a judgment order finding that Nielsen was required to indemnify the city against the Gay judgment; that Anderson was required to indemnify both the city and Nielsen against the same Gay judgment and that Anderson was not entitled to recover against Nielsen on its counter-claim for breach of contract. From that judgment only the defendant Anderson has appealed.
The parties in their briefs and arguments have argued principally two issues: first, whether under the facts here the common law of this state confers upon Nielsen a right of indemnity against Anderson, and, second, whether the contractual agreements of the parties here involved grant to Nielsen any right of indemnity against Anderson. We shall take up the second of these issues first, since a conclusion thereon must necessarily be reached before the question of common law rights, if any, becomes important.
At the outset it should be pointed out that the Gay judgment was not predicated upon the negligence of anyone and that all three defendants conceded their liability to the plaintiffs, Veronica F. Gay and John J. Gay, for damage caused to their two dwelling houses as a result of blasting operations in the construction of the sewer. No issue is raised that any contractual provision to indemnify might be void or unenforceable as against the public policy of this State. Further, it is not disputed that under its prime contract with the city Nielsen is required to indemnify the city against the Gay judgment. The controversy revolves about the question of ultimate liability and indemnity as between Nielsen and Anderson and whether one or the other of those corporations must ultimately bear the entire burden of the Gay judgment.
Turning first to the prime contract between the city and Nielsen, it requires the prime contractor to construct and complete a sewer and water main project in accordance with the terms of the prime contract, plans and specifications. The prime contract includes a provision designated Page KK-1, 3(c) which provides in pertinent part as follows:
"The Contractor agrees to indemnify and save the Owner harmless against all claims for damages to real or personal property or for injuries to persons, or deaths caused in any manner whatsoever, by explosions, blasting, handling or storing of explosives for the work hereunder."
The sub-contract between Nielsen and Anderson, after the customary preliminary paragraph, reads in pertinent part:
"That the Sub-Contractor agrees for certain hereinafter specified considerations to furnish all materials, labor, equipment, scaffolding, transportation and services necessary and required to manufacture, finish, deliver, erect, install and fully complete, according to and as required by plans, specifications, addenda and bulletins thereto, prepared by Consoer, Townsend and Associates, Consulting Engineers, 351 East Ohio Street, Chicago 11, Illinois. . . . Architect, the following described work in the construction of the Sewage Works Improvement Project, Contract No. 9, Divisions A, B and C to wit: All work complete Division "B" Intercepting Sewers and Division "C" Water Mains . . . to be erected at Joliet, Illinois
and the Sub-Contractor further agrees to fully relieve the Contractor of all responsibility for finishing and completing the said work in accordance with the Contractor's General Contract with City of Joliet, Illinois.
hereinafter designated the Owner in the construction/alteration of the above-named project, and agrees that the terms and provisions of said General Contract, except as specifically modified by this Agreement, between the Contractor and
said Owner, dated the thirtieth . . . day of August . . . 1955, are made a part of this Agreement: and further, that the Sub-Contractor grants to said Contractor those rights, powers, and remedies in every detail and respect and in the same language and intent which the ...