
    BLACK MOUNTAIN RAILROAD COMPANY et als. v. OCEAN ACCIDENT AND GUARANTEE CORPORATION.
    (Filed 6 December, 1916.)
    1. Contracts — Independent Contractor — Owner—Indemnity — Parties — Damages.
    Where the owner is not relieved by independent contract from liability to his contractor’s employees for personal injuries received while engaged in doing the work, and the contractor enters into a contract with a liability company to indemnify the owner against such damages, running in the name of the contractor but for the benefit of the owner, with the full knowledge and consent of the indemnity company, the owner who has compromised an action against it which was covered by the policy, and has paid the loss, may maintain an action against the indemnity company to recover the amount so paid.
    2. Contracts — Independent Contractor — Partnership—Indemnity.
    Where a member of a firm of contractors takes out a policy of indemnity for the benefit of the owner in his name, instead of that of the firm, in an action against the indemnity company to recover for a loss covered by the policy: Held, each partner is responsible for a partnership loss, and is entitled to the indemnity, and it is immaterial as to the indemnity company whether the policy sued on was taken out in the name of one of the partners or in the name of the firm.
    3. Contracts — Independent Contractor — Indemnity—Parties—Misjoinder—De-murrer.
    In an action by a contractor and owner against an indemnity company to recover a loss, covered by the policy, which the owner had sustained, a demurrer by the defendant for misjoinder of parties plaintiff is bad, for there can be but one recovery and it cannot be prejudicial. Q-orrell v. Water Co., 124 N. C., 328, cited and approved.
    Appeal by defendants from Shaw, J., at July Term, 1916, of McDowell.
    
      J. J. McLaughlin, Pless <& Winborne for plaintiffs.
    
    
      F. W. Gatlin, Alf S. Barnard, and A. Mall Johnston for defendant.
    
   Clark, C. J.

Tbe complaint alleges tbat tbe plaintiff Ruffin entered into a contract witb ibe Black Mountain Railroad Company to build the road and deliver it free of all claims and liens, which be undertook to accomplish by making a contract of indemnity witb tbe Ocean Accident and Guarantee Corporation, and tbat this contract was “for tbe protection of tbe Black Mountain Railroad Company and for its benefit and witb full knowledge of tbe defendant tbat said insurance was for tbe benefit of tbe said Black Mountain Railroad Company.”

An injury having occurred to one of tbe workmen (Thomas Ruffin), who was known by tbe defendant to be tbe agent of tbe Black Mountain Railroad' Company, it become liable for tbe injured workman, and tbis action is brought to recover tbe loss incurred, wbicb further it is alleged has been paid by tbe owner under a compromise in an action brought therefor.

Tbe indemnity company knew that Ruffin was under contract to pay any judgment or just claims arising from such injuries as tbis, and wrote tbis policy to indemnify him. When tbe suit was brought tbe defendant took part in making tbe defense. It is immaterial that Ruffin was not a party to tbe action wbicb was brought by tbe injured employee directly against tbe plaintiff railroad company. Tbe injury was for tbe negligent use of explosives, and tbe railroad company, therefore, was not released from liability by reason of tbe fact that Ruffin was an independent contractor.

Upon tbe statement in tbe complaint, tbe demurrer was properly overruled. Tbe railroad company suffered the loss, Ruffin or Ruffin & Harris (of wbicb firm be was a partner) is responsible to tbe railroad company for tbe amount of said loss, and under bis indemnity is entitled to be protected in turn by tbe indemnity company, tbe defendant. If there are any defenses, they can be presented by tbe answer. It is immaterial that tbe indemnity was taken out in tbe name of Ruffin & Harris, for as one of tbe partnership be is responsible to tbe railroad company for tbe loss and can require tbe indemnity company to make tbe loss good. Tbe demurrer for misjoinder need not be discussed. If there are unnecessary parties plaintiff, they might object on account of tbe costs or fear of judgment against them, but it is no prejudice to tbe defendant.

Both tbe railroad company, ’ tbe beneficiary of tbe contract, wbicb claims to recover under tbe doctrine of Gorrell v. Water Co., 124 N. C., 328, and Ruffin, tbe obligee in tbe contract, are parties plaintiff, and as there can be but one recovery, it is a question between them and not a prejudice to tbe defendant. Nor can there be a misjoinder, for there is but one single cause of action, tbe injury to tbe employee and tbe responsibility of tbe defendant by reason of tbe contract of indemnity.

Affirmed.  