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Zadak v. Cannon

JANUARY 11, 1974.

CHARLES ZADAK ET AL., PLAINTIFFS,

v.

DALE LYNN CANNON ET AL., DEFENDANTS — (SUNBEAM CORPORATION, THIRD-PARTY PLAINTIFF-APPELLEE,

v.

CYCLONE BLOW PIPE COMPANY, THIRD-PARTY DEFENDANT-APPELLANT.)



APPEAL from the Circuit Court of Cook County; the Hon. ALBERT E. HALLETT, Judge, presiding.

MR. JUSTICE ENGLISH DELIVERED THE OPINION OF THE COURT:

Charles Zadak, an employee of Cyclone Blow Pipe Company, sued Sunbeam Corporation and its employee Dale Cannon for injuries which Zadak suffered while working at the Sunbeam plant installing equipment which Sunbeam had purchased from Cyclone under a written purchase order. Zadak alleged that he was injured either negligently or wilfully by Cannon. Sunbeam filed a third-party complaint against Cyclone on the basis of an indemnification provision which was included among the terms and conditions of the purchase order which Cyclone accepted and pursuant to which it was installing the equipment ordered.

The purchase order provides that Sunbeam gives the seller the order

"* * * on the express terms and conditions stated herein and on the back of this order, all of which conditions are in integral part hereof and shall be considered as being incorporated herein at this place, in the same manner as though so written or printed here."

The order also states that:

"Shipment against this order shall be deemed acceptance by Seller of each of such terms and conditions * * *."

Two of the conditions are relevant:

"(k) * * * seller [Cyclone] also will indemnify and hold harmless the buyer [Sunbeam] of and from any and all suits, claims, liens, damages, taxes or demands whatsoever arising out of any such work covered by, necessitated or performed under this order. (Emphasis added.)

(1) In consideration of the acceptance of this order, seller agrees to defend, protect and save harmless the buyer, or any of its customers, against all suits at law or in equity * * * or for any other actual or alleged injury to property or person, and to defend or assist in the defense of any suit or action which may be brought against the buyer * * * by reason of * * * any other claim of any kind resulting from the purchase, sale or use of the goods, commodities, products and items covered by this order."

Cyclone has admitted that the purchase order and conditions were in effect, but has denied their applicability to the facts of this case. In the trial court, Sunbeam moved for judgment on the pleadings; the trial court, in effect, allowed its motion by granting summary judgment in its favor.

Cyclone contends that Westinghouse Electric Elevator Co. v. La Salle Monroe Bldg. Corp., 395 Ill. 429, 70 N.E.2d 604, is controlling in this case. In Westinghouse, the court said that although it is a general rule that unless a contract is ambiguous, its meaning must be determined from the words used, it is also true that

"* * * an indemnity contract will not be construed as indemnifying one against his own negligence, unless such a construction is required by clear and explicit language of the contract, * * *." 395 Ill. at 433.

Cyclone also cites later cases which it suggests adhere to the Westinghouse doctrine, including Li Petri v. Turner Construction Co., 36 Ill.2d 597, 224 N.E.2d 841; Halperin v. Darling & Co., 80 Ill. App.2d 353, 225 N.E.2d 92; Ford Motor Co. v. Commissary, Inc., 286 F. Supp. 229 (N.D. Ill.); and Chicago & Northwestern Ry. Co. v. Chicago Packaged Fuel Co., 195 F.2d 467 (7th Cir.), cert. denied 344 U.S. 832, 97 L.Ed. 648, 73 S.Ct. 39.

However, we believe that Westinghouse and the later cases do not support Cyclone's position. The language of the contract in Westinghouse provided indemnification to ...


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