Rosendahl Corp. v. H. K. Ferguson Co.

SALSMAN, J.

Rosendahl Corporation, hereafter referred to as plaintiff, brought this action against the H. K. Ferguson Company, a corporation, hereafter referred to as defendant, and obtained a judgment based upon a written indemnity agreement. Defendant appeals.

In 1954 the defendant was engaged as a general contractor in the construction of a building in Richmond. The job involved the excavation of a basement and the construction of reinforced concrete walls. Both operations required the use of mobile cranes.

The plaintiff is a commercial leasing company, and leased to defendant a certain crane to be used by the defendant in connection with the pouring of concrete for the walls of the building being constructed. Employees of both parties conferred about hourly rental rates, and the terms and conditions under which various kinds of equipment could be leased, and they discussed the fact that plaintiff’s rental rates, at least as to some equipment, did not include a charge for insurance. The crane leased by plaintiff to defendant was leased on a “fully operated” basis, that is it was accompanied by an operator and an oiler, both employees of plaintiff, but who acted under the direction and control of the defendant in the performance of the work for which the crane was leased. The oiler was given a book of forms entitled “Crane Lease Agreement,” and at the end of each day’s operations it was his duty to fill out the Crane Lease Agreement for that day, in triplicate, describing the equipment, its place of operation, and hours worked, together with other relative data called for by the form. The agreement was then presented to an employee of defendant, who confirmed it by signature and retained a copy. The Crane Lease Agreement contained the following indemnity provision; “The Lessee expressly agrees

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to indemnify and save Lessor harmless from and against all costs, losses and claims for death or injury to persons, and loss, damage or injury to property including leased equipment caused or resulting, directly or indirectly, from the work covered by this order, or done by said equipment, it being expressly agreed that the leased equipment and the employees furnished therewith is under the exclusive jurisdiction, control and supervision of the Lessee.” The crane leased by defendant was used without incident on nine different dates, and at the end of each day’s use a form Crane Lease Agreement was prepared by plaintiff and signed by defendant. On the tenth day of the crane’s operation, however, while defendant was using the crane to pour concrete, the cement bucket struck one Phillips, an employee of defendant. The lease agreement for this day was signed by defendant on the next working day. Phillips was knocked off the top of a wall and sustained serious injuries. Phillips filed suit against plaintiff, and plaintiff tendered the defense of that action to defendant pursuant to the indemnity provisions contained in the Crane Lease Agreement. Defendant refused to defend. Plaintiff herein then stipulated in open court to judgment in favor of Phillips in the sum of $12,500, and by this indemnity action seeks to transfer the burden of this judgment to defendant.