Before HASTINGS, Chief Judge, and DUFFY and MAJOR, Circuit Judges.
Edwin W. La Sanska brought this action against United States of America under the Federal Tort Claims Act, 28 U.S.C.A. §§ 1346(b) and 2671 et seq., for an injury allegedly sustained by him while doing construction work upon property owned by Government. Plaintiff alleged a violation of the Structural Work Act of Illinois, Ill.Rev.Stat. ch. 48, § 60.
Government filed a third-party complaint against Gerson Electric Construction Company (Gerson) asserting a right, based upon written contracts, to be indemnified and defended by Gerson against the claim of plaintiff. Gerson moved to dismiss "for the reason that said Complaint fails to state a claim upon which relief can be granted."
The district court sustained Gerson's motion, entered judgment against Government and certified that judgment was final and there was no just reason to delay an appeal. Government has appealed.
The sole issue before us is the sufficiency of Government's amended third-party complaint. This issue arises on the pleadings.
On or about September 7, 1960, Government entered into a written contract with Joseph J. Duffy Company (Duffy) for the construction of a certain power building at Argonne National Laboratory near Chicago, Illinois. This building was a part of the construction of an atom smasher for the United States Atomic Energy Commission.
Included in this contract were the provisions of paragraph 34, as follows:
"(a) The Contractor [Duffy] assumes entire responsibility and liability for losses, expenses, damages, demands, and claims connected with or arising out of any injury or alleged injury (including death), or damage or alleged damage to property sustained or alleged to have been sustained in connection with or to have arisen out of the performance of the work by the Contractor, its subcontractors and their agents, servants, and employees, including losses, expenses or damages sustained by the Government, and shall indemnify and hold harmless the Government, its agents, servants, and employees from any and all such losses, expenses, damages, demands and claims, and shall defend any suits or action brought against it, or them, or any of them, based on any such alleged injury or damage, and shall pay all damages, costs, and expenses, including attorney's fees, connected therewith or resulting therefrom.
"(b) 'Injury' or 'damage,' as those words are used in paragraph (a) of this clause, shall be construed to include, but not be limited to, injury or damage consequent upon the failure or use or misuse by the Contractor, its agents, servants, and employees, of any hoist, rigging, blocking, scaffolding, or any and all other kinds of equipment, whether or not owned or furnished by the Government."
On or about October 28, 1960, Duffy entered into a sub-contract with Gerson which contained the following indemnity provision in Article VIII:
"The Sub-contractor hereby agrees to indemnify and keep harmless the Contractor against all liability, claims, judgments or demands for damages arising from accidents to persons or property occasioned by the Sub-contractor, his agents or employees, and against all claims or demands for damages arising from accidents to the Sub-contractor, his agents or employees, whether occasioned by said Sub-contractor or his employees or by the Contractor or his employees, or any other person or persons; and the said Sub-contractor will defend any and all suits that may be brought against the Contractor on account of any such accidents and will reimburse the Contractor for any expenditures that said Contractor may make by reason of such accidents.
"In order to insure the fulfillment of the foregoing, the Sub-contractor hereby agrees to carry public liability and property damage insurance, workmen's compensation or employees' liability insurance, in amounts satisfactory to the Contractor and Owner and in insurance companies approved by the Contractor. The Sub-contractor also agrees to furnish the Contractor with suitable evidence that such insurance has been taken out and will continue in force until the completion of this work. If the Sub-contractor should sublet any of this work to a third party, he agrees to see that ...