Conford, Freund and Kilkenny. The opinion of the court was delivered by Conford, S.j.a.d.
[68 NJSuper Page 510] This action originated with a complaint by Buscaglia against defendant and third-party plaintiff Owens-Corning Fiberglas ("Owens" hereinafter) to recover damages for injuries he sustained at its Barrington plant on April 8, 1957 while doing electrical wiring as an employee of third-party (actually fourth-party) defendants William E. Snell and May Snell ("Snell" hereinafter) in
the course of the latters' performance of a subcontract for electrical work under a contract by third-party defendant and third-party (actually fourth-party) plaintiff Catalytic Construction Company ("Catalytic" hereinafter) with Owens to do certain construction work in Owens' plant aforementioned. Owens claimed over against Catalytic in respect of the Buscaglia action on the basis of an indemnification clause, and another provision of the agreement with Catalytic allegedly breached by the latter; Catalytic, in turn, claimed over against Snell on an indemnification clause of the subcontract.
When the case came to trial, Owens settled Buscaglia's claim against it for $20,000, which the other parties have stipulated was a reasonable settlement of Buscaglia's claim of negligence against Owens. The other claims were then submitted to the late Camden County Judge Dzick, sitting in the Superior Court, Law Division, to be decided by him without a jury, on the basis of a stipulation of facts and pretrial depositions. The court held for Owens against Catalytic in the amount paid Buscaglia plus costs and counsel fees incurred in that regard. This conclusion was predicated both on the indemnification agreement in the contract and on the doctrine of restitution, activated by breach of another provision of the agreement mentioned above, by which Catalytic undertook to take all necessary safety precautions. But Judge Dzick found the provisions of the Catalytic-Snell subcontract too vague to ground Catalytic's claim over against Snell. Catalytic appeals both determinations.
Under the Owens-Catalytic contract the latter undertook to install machines and apparatus in the Owens plant to be used in its manufacturing operations. Specific work was ordered by "owner's purchase orders." In January 1957 Owens ordered from Catalytic, among other items, the installation and wiring of a "Process 20" machine and a monorail at its Barrington plant. When completed, the monorail would serve as a track for the movement of a
traveling overhead hoist crane to transport heavy parts of the Process 20 machine to other parts of the plant for cleaning. Power for the operation of the hoist crane was transmitted through contact with an electrically charged and exposed "buss" running along the monorail. The parts and fittings of the machine and monorail were supplied by Owens, and it also specified the design. The electrical work, including the wiring of the machine and electrifying the monorail, was subcontracted by Catalytic to Snell. The arrangements between Catalytic and Owens concededly contemplated that Owens' manufacturing operations would proceed while the contracted equipment was being installed.
On April 5, 1957 installation of the monorail was completed. Owens' personnel tested it and found it satisfactory. It was "green-tagged" as a finished part of the contract, turned over to the owner and accepted by it for its use. It was actually used by Owens each day thereafter prior to the accident to the plaintiff on April 8, 1957, and specifically on the Owens night shift the night before the morning of April 8, 1957. On that day plaintiff, an employee of Snell, and engaged on the Owens job but a short time, was wiring the Process 20 machine under the contract and subcontract aforementioned. He was working on top of the machine, high off the floor, near the energized monorail, when he either lost his balance or tripped upon catching his trousers cuff, and came into contact with the monorail, suffering burns and falling to the floor.
From the testimony it appeared that neither Catalytic nor Snell, nor their agents or employees, notified plaintiff that the current in the monorail was or may have been turned on. Nor did they make any effort to determine whether or not it was on. Buscaglia testified that although he knew the monorail was there and was operated by electricity, his foreman had told him at the time that "it was O.K. and everything was safe in that area to work." A field superintendent of Catalytic was present when the monorail was turned over to Owens on April 5, 1957. It was then tested and the power
shut off. After that Catalytic had no more to do with the monorail.
Resolution of the issues herein depends upon construction and application of the contract language. Two sections of the Owens-Catalytic contract are particularly material to the dispute between those parties. They follow:
Catalytic shall perform all work in such manner as not to interfere with use of premises by Owner or other contractors. Catalytic agrees that there shall be no interruption of Owner's manufacturing operations except as approved by Owner. Catalytic shall take all necessary precautions (including those required by Owner's safety regulations) to protect the premises and all persons and property thereon from damage or injury and shall assume responsibility for the taking of ...