MEMORANDUM AND ORDER
HOLDEN, Chief Judge.
These companion cases arose out of an accident which occurred on a construction site in St. Johnsbury, Vermont on September 30, 1971. Marvin Mousseau and Alvin Martin, both employees of Johnson Industrial Painting Contractors, were working on a scaffold suspended on the exterior of an unfinished building when the Manila rope supporting the platform broke, causing both men to fall to the ground. As a result of the fall, Mousseau was killed and Martin was injured. Workmen's Compensation benefits were recovered from the employer Johnson. Daniel Ryan, Mousseau's administrator, and Martin brought suit against the New Bedford Cordage Company, which manufactured the Manila rope, Reynolds & Son, Inc., the retailer from which it was purchased, and Vermont Construction Company, Inc., the general contractor on the construction project, for which Johnson was a subcontractor.
Defendant Vermont Construction brought a third party action against the employer Johnson, which was dismissed by the court on September 19, 1974. A second third party action by Vermont Construction and a claim by the plaintiffs against George & Asmussen, Ltd., a masonry subcontractor on the project, were voluntarily dismissed by these parties during the course of the trial.
After seven days of trial in these consolidated cases the jury returned special and general verdicts for the plaintiff Ryan, finding the defendant Vermont Construction liable in negligence for the wrongful death of Marvin Mousseau in the amount of $189,800 in Civ. No. 73-240. In the companion case of Alvin E. Martin against the same defendants, Civ. No. 74-99, the jury, by way of special interrogatories and a general verdict, found the defendant Vermont Construction liable in negligence in the amount of $32,500. In both cases the jury found the defendants New Bedford Cordage and Reynolds & Son not liable to the plaintiffs on their products liability claims.
At 9:25 in the evening, after approximately nine hours of deliberation, the jury reported they had reached a verdict. By answer to special interrogatories, the jury found the defendant Vermont Construction's negligence was, to the extent of 65%, a proximate cause of the accident which caused Mousseau's death. The decedent's contributory negligence was found to have been 35% of the total negligence. Under the Vermont comparative negligence statute, 12 V.S.A. § 1036, these findings rendered Vermont Construction liable for 65% of the plaintiff's total damage which was found to be $292,000.
In the companion case of Martin, the jury found the plaintiff was guilty of contributory negligence to the extent of 35%, compared to Vermont Construction's negligence of 65%. The jury correctly applied this ratio to Martin's total damage of $50,000 and returned a general verdict of $32,500 for this plaintiff. To this extent, the general verdicts were consistent with the underlying answers to the special interrogatories and with the evidence supporting the claims against Vermont Construction.
The jury also returned general verdicts on the products liability claims of each plaintiff against New Bedford Cordage and Reynolds & Son in the amount of $25,000.
After judgments were entered according to the several verdicts, the defendant Vermont Construction moved for judgment notwithstanding the verdicts, for a new trial and that the verdicts in both cases be reduced by the amount of workmen's compensation benefits paid to both plaintiffs by the carriers for their employer, Johnson Industrial Painting Contractors. This defendant also moved to vacate the court's pretrial order dismissing its third party complaint against Johnson Industrial Painting Contractors.
The plaintiffs moved for judgment against all defendants on the ground that the jury had originally returned general verdicts against all defendants albeit the damages were incorrectly assessed on the products liability claims.
The court is satisfied that the verdicts which were finally received are fully supported by the evidence and consistent with the court's instructions. There is no indication of compromise or confusion on the part of the jury in their deliberation. All of the post trial motions are denied, including the request of Vermont Construction for the court to vacate its order dismissing the third party action against Johnson.
The evidence at the trial firmly establishes that the general contractor, Vermont Construction, and the subcontractor, Johnson, were both at fault in the tragic accident that occurred on the construction site. Both actors were actively negligent in their failure to exercise reasonable care for the safety of Mousseau and Martin. In the court's judgment, they stand as joint tortfeasors.
Again, Vermont Construction has failed to advance any express agreement on the part of the third party defendant to indemnify the general contractor, although the subcontract was prepared and submitted by Vermont Construction. To its Memorandum and Order of September 19, 1974, the court will merely add a reference to New England Telephone and Telegraph Co. v. Central Vermont Public Service Corp., 391 F.Supp. 420 (D.Vt.1975).
Judge Oakes's opinion in that case restates the law of Vermont to the effect that one active, or primarily liable, tortfeasor may not be indemnified by another except by an express indemnification provision in a contract. Id. at 426. Compare Digregorio v. Champlain Valley Fruit Co., 127 Vt. 562, 255 A.2d 183 (1969). The rule against indemnification would predictably incline the Supreme Court of Vermont against reducing the injured workman's recovery by the amount of compensation he has received from his employer. The Supreme Court of Vermont has said in Dubie v. Cass-Warner Corp., 125 Vt. 476, 478, 218 A.2d 694, 696 (1966):
In its present motion for judgment the defendant renews the contention advanced in its motion for a directed verdict to the effect that Vermont Construction is the statutory employer of both plaintiffs as defined in the Vermont Workmen's Compensation Law, 21 V.S.A. § 601(3):
As the general contractor, Vermont Construction maintains it comes within the definition, and as a statutory employer, it is entitled to immunity from common law liability by force of 21 V.S.A. § 622, which provides:
The present action is founded on the provisions of 21 V.S.A. § 624, as amended by No. 232 of the Public Acts of 1959. The 1959 amendment restored common law liability in favor of an injured employee when caused under circumstances where legal liability resides in a stranger to the contract of employment, even though the workman may have received compensation under the Workmen's Compensation Act. Herbert v. Layman, 125 Vt. 481, 483, 218 A.2d 706 (1966).
There is no dispute in the record that Mousseau and Martin were the employees
The liability of Vermont Construction, the general contractor, to the employees of the subcontractor Johnson is conditional, imposed by law, in the event the subcontractor fails to secure compensation as required by 21 V.S.A. § 687.
The respective motions of the parties for judgment notwithstanding the jury's verdicts, to reduce the verdicts and for new trials are denied.
Since the plaintiffs Ryan and Martin and the defendant Vermont Construction stipulated in the record to voluntary dismissal of the claim in the main action and in the third party suit against George & Asmussen, Ltd., these actions are dismissed.
It is so ORDERED.