Contract, Of indemnity, Construction, Validity. A contract made by a news company that, in consideration of the exclusive privilege of selling papers on all cars operated by a certain street railway company, it will, besides making certain payments in money, indemnify the street railway company for all loss or damage suffered on account of injuries received by newsboys in the employ of the news company "while boarding, riding upon or leaving the cars of the street railway company, or while on or about its tracks" includes indemnity for the satisfaction of an execution issued against the street railway company, in an action brought against it by a newsboy employed by the news company who was kicked in the stomach by a conductor on a car of the street railway company when he was on the top step going into the car holding the two handles and was thrown to the ground and injured, and indemnity for expenses incurred by the street railway company in defending such action.
The liability of the news company under the unambiguous terms of the contract described above was held not to be affected by a provision in the contract that the news company should take out insurance to protect both companies from loss on account of "injuries to the employees of the news company on or about the cars and tracks of the street railway company," even if the liability described by the clause last quoted was not so broad.
An agreement by a news company to save harmless a street railway company "from all loss, cost or damage on account of injuries received by newsboys in its [the news company's] employ or wearing its badge while boarding, riding upon or leaving the cars of the street railway company, or while on or about its tracks," is valid.
LORING, J.
1. We are of opinion that the injury to Higgins was within the contract by which the defendant agreed to save the plaintiff "harmless from all loss, cost or damage on account of injuries received by newsboys in its employ . . . while boarding, riding upon or leaving the cars of the Street Railway Company." The unambiguous terms of this agreement are not to be cut down by the fact (if it is a fact) that the policy which the defendant (by paragraph 6) was to carry for the plaintiff's benefit was not so broad.
2. The agreement here sued on is nothing more and nothing less than an agreement insuring the plaintiff against liability to newsboys "while boarding, riding upon or leaving the cars of the" plaintiff. Of its validity there can be no question. In his argument to the contrary the learned counsel for the defendant has overlooked the fact that the agreement is not with the newsboys but with a third person, to wit, the newsboys' employer.
Judgment affirmed.