Kiley, Fairchild and Cummings, Circuit Judges.
LaSalle's third-party complaint against Reynolds contained two counts. In Count I LaSalle asserted Reynolds' liability to indemnify LaSalle, arising out of the contract discussed in part numbered 5 of our opinion. The district court found there was such liability, pursuant to express contract, and gave judgment accordingly February 1, 1965. Reynolds appealed, and we affirmed.
LaSalle had appealed from orders of June 19, 1964 directing a verdict in favor of Reynolds on Count II of the third-party complaint, and of October 27, denying reconsideration. In Count II, LaSalle had alleged that any negligence causing Spurr's injuries proximately resulted from active negligence of Reynolds; that any liability imposed on LaSalle would be vicarious, its relevant acts being purely passive in nature.
We assumed that review of the court's ruling on Count II would be necessary only if we disagreed with the district court on the issue of contractual indemnity. Common law liability for indemnity might exist and support a judgment for indemnity even if contract liability did not, but having upheld the district court on contractual liability, we said there was no occasion to consider the common law theory.
LaSalle now asks us to decide the Count II issue, and Reynolds joins in this request. Our decision on this point still can make no difference in the judgments rendered and affirmed. These parties, however, say they are not only concerned with the judgment, but with the question whether they may have been common law liability as well as liability upon contract. Apparently the importance of the matter to these parties arises from some provision of Reynolds' insurance policy, not of record.
Although consideration of the issue is not necessary, it is not improper. We have no hesitancy in stating our conclusion that the record would not support a finding of common law liability for indemnity.
LaSalle's theory is that Reynolds had actual knowledge of Spurr's performing work near the pit while LaSalle did not; that Reynolds failed to require Spurr to use a safety belt, to instruct Spurr to remove the strainer in a safer way, to warn Spurr against working in adangerous position, and to put up a temporary barricade while Spurr was working in a dangerous position, and to put up a temporary barricade while Spurr was working near the pit; that by comparison of these delinquencies with LaSalle's failure to barricade the pit for the general benefit, Reynolds was the "active and primary wrongdoer" and LaSalle "bears a passive or secondary relationship to the cause of the injury."*fn1
We do not interpret the ruling of the district judge as absolving Reynolds from the negligence alleged in Count II, or, indeed, as deciding that Reynolds was or was not negligent, but as deciding that it was inappropriate to submit to the jury any issue under Count II, i.e., assuming that the jury found LaSalle negligent in failing to erect a barricade, and found Reynolds negligent in the respects claimed by LaSalle, such negligence did not differ sufficiently as to character, degree, or ...