Appeal from the Superior Court of Cook County; the Hon. HENRY
W. DIERINGER, Judge, presiding. Order of June 13, 1962, reversed
in its entirety, subsequent order reversed in part, and cause
remanded with directions.
MR. JUSTICE FRIEND DELIVERED THE OPINION OF THE COURT:
Rehearing denied May 19, 1964.
Montgomery Ward and Company and The Fair, defendants and also third-party plaintiffs, appeal from the trial court's refusal to enforce a contract of indemnity in a third-party action arising out of a personal-injury suit. The original suit was filed in the Municipal Court of Evanston and later transferred to the Superior Court of Cook County. The third-party claim of The Fair against Service Operations System of Illinois (SOS) was severed, and the case proceeded to trial on the underlying claim of Delbert F. Haynes, an employee of SOS, against The Fair.
SOS is a janitorial service firm under contract to maintain various buildings in the Chicago area, including The Fair's Loop and outlying stores. The Fair agreed to pay SOS $170,756.56 a year for maintaining its Loop store and for certain additional services; one of these additional services was described as follows: "Complete Insurance Coverage, with Hold-Harmless Clause for the Fair Store Company included." The contract between The Fair and SOS which is the basis of this controversy contains the following provision: "It is agreed that the Vendor [SOS] holds the Vendee [The Fair] harmless for any and all injuries or accident sustained by the Vendor's employees while on the premises of the Fair Store Company or while en route to perform any services for the Vendee."
So that SOS employees could haul refuse carts and debris between the various floors in The Fair, SOS was given the use of an elevator. Although the elevators were equipped with safety locks to prevent the doors from being opened from the outside, they were easily so opened by the use of a long hook. On the elevator that was used by the SOS employees, the indicator which showed the floor position of the elevator was stuck permanently at one; the evidence shows that the indicator had not been working for a long time before the accident.
Haynes was employed by SOS as a janitor on the premises of The Fair's Loop store. About 8:00 p.m. on December 5, 1959, two hours after closing time, Haynes, who was cleaning around the counters on the first floor, was told by his foreman to take the elevator to the eighth floor. Haynes opened the elevator door and stepped in not to the elevator car, which was not at the first floor level, but into the shaft and fell to the bottom. On the first trial the jury disagreed; the second trial resulted in a verdict and judgment for Haynes in the amount of $175,000. This judgment was settled by The Fair for $150,000. The Fair then moved for judgment against the third-party defendant on the basis of its contract of indemnity. The trial judge held, as a matter of law, that The Fair was not entitled to indemnity under the contract, denied its motion for judgment on the indemnity contract, and entered judgment for SOS, from which The Fair appeals.
The basis for The Fair's claim for indemnification for the amount paid to satisfy Haynes's judgment is the foregoing quoted hold-harmless clause of the agreement. SOS contends that the written contract upon which The Fair seeks to be reimbursed does not cover this accident because The Fair was negligent in the equipping, maintaining, and controlling of its elevators, and that this negligence was the proximate cause of Haynes's injury. The question presented is whether there should have been specific language in the contract providing that The Fair would be indemnified against its own negligence. The trial judge accepted SOS's theory that because The Fair was negligent and the contract did not have specific language stating that The Fair would be indemnified against its own negligence, The Fair could not recover against SOS.
In De Tienne v. S.N. Nielsen Co., 45 Ill. App.2d 231, 233, 195 N.E.2d 240 (1963), the court makes the following general comments as to construction of indemnity agreements:
"Contracts for indemnification are enforcible in Illinois, including contracts in which one party takes over responsibility for another's negligence. These latter agreements, however, are carefully scrutinized and strictly construed; they must clearly show the intention of one party to protect itself from claims arising from its own acts of negligence and the intention of the other to assume these obligations. [Citing cases.]"
The case of Russell v. Shell Oil Co., 339 Ill. App. 168, 89 N.E.2d 415 (1949), is directly in point. Under the provisions of the indemnity contract between the painting contractor and the oil company, both of whom were allegedly bound by the Workmen's Compensation Act, providing that the contractor should hold the company harmless from all claims for injury to persons, including the contractor's employees, resulting from or arising from any of the contractor's operations, the court held that inasmuch as an injury to one of the contractor's employees sustained while painting a light pole at the oil company's gas station arose in connection with the contractor's operations within the meaning of the contract, the contract was a complete defense to the action against the oil company by the contractor, for the benefit of the contractor's insurer, to recover sums paid to the employee as compensation and medical expenses under the Workmen's Compensation Act. SOS seeks to distinguish the Russell case on the ground that the contract there was "quite broad and detailed in sharp contrast to the brief clause involved in the case at bar." The indemnity clause in Russell provided for indemnification in all accidents "`. . . resulting from or arising in connection with any of CONTRACTOR'S operations. . . .'" In the case at bar the indemnity clause provides indemnification "for any and all injuries or accident. . . ." We fail to see any material difference in the coverage of these contracts of indemnity.
Northern States Co. v. A. Finkl & Sons Co., 8 Ill. App.2d 419, 132 N.E.2d 59 (1956), is to the same effect as the Russell case. The only question presented upon the appeal, the court held in the Northern States Company case, was whether the indemnity provided was broad enough to cover the accident in question and said (422-23):
"It will thus be seen that the language of the indemnity in the instant case, `that the Contractor shall be responsible for any and all injury due to damage to any person and/or property, . . . arising directly or indirectly from or in connection with work performed or to be performed under this contract . . . and shall hold the Owner harmless of any and all loss or damage from such injury,' (italics ours), is much broader than that in the Russell case. It does not exclude a case of injury to `any person' due to negligence of Finkl. We think the reasoning and holding in the Russell case should be applied to the instant case."
SOS attempts to distinguish this case by stating that there "the contract is much broader and much more specific than in the case at bar," but we cannot agree with this view of the contract.
The Federal case of United States Steel Corp. v. Emerson-Comstock Co., 141 F. Supp. 143 (ND Ill 1956), is likewise in point. There the plaintiff corporation engaged the defendant to dismantle all the electrical equipment on the plaintiff's buildings in Gary, Indiana. Without warning to the defendant's electrician who was dismantling the wires, the electric current was negligently turned on, with the result that the employee was severely burned. He brought suit against United States Steel and the seller of the buildings, and recovered a joint and several judgment against them. He did not sue his employer (the defendant in the case subsequently instituted by United States Steel), but in the employee's suit his employer as indemnitor was given notice and requested to defend. It declined to do so, however, "apparently on the ground," the court theorized (145), that it "believed that the injury was occasioned by the indemnitee's own negligence and as such was not covered by indemnity agreement." United States Steel in the suit it instituted did not dispute that the injury resulted from its negligence; it based its case solely on the ...