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Zadak v. Cannon

OPINION FILED NOVEMBER 18, 1974.

CHARLES ZADAK ET AL.,

v.

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

v.

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



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County; the Hon. Albert E. Hallett, Judge, presiding.

MR. JUSTICE DAVIS DELIVERED THE OPINION OF THE COURT:

Charles Zadak, who was employed by Cyclone Blow Pipe Company (Cyclone), and Louise Zadak, his wife, filed a four-count suit in the circuit court of Cook County against Sunbeam Corporation (Sunbeam), and Dale Lynn Cannon, one of its employees, for injuries allegedly sustained by Zadak due to Cannon's negligence or wilful conduct in the operation of a certain forklift-type jeep truck. Sunbeam, along with its answer to Zadaks' complaint, filed a third-party complaint against Cyclone based on the indemnification provision of the purchase order which Cyclone accepted. The purchase order provided among other things that Sunbeam, as buyer, orders from the seller the goods herein specified and such order is given "* * * on the express terms and conditions stated herein and on the back of this order, all of which conditions are an 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 * * *." Condition (k) is pertinent and provides:

"(k) The seller will insure its liability to pay any compensation to employees engaged by seller in any work covered by or necessitated by, or performed to fill this order on account of any employer's liability act or workmen's compensation act of the Federal Government or of the State or States in which said work is to be performed; seller also will indemnify and hold harmless the buyer 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."

The trial court granted Sunbeam summary judgment against Cyclone on the third-party complaint. The appellate court affirmed (17 Ill. App.3d 74), and we granted leave to appeal.

Cyclone's answer to the third-party complaint admits that Zadak was its employee and was performing work at the Sunbeam plant pursuant to the contract purchase order.

Sunbeam issued its purchase order, dated July 28, 1969, to Cyclone for certain ventilating equipment. Cyclone admitted that the purchase order and its conditions were in effect on March 18, 1970, the date of the accident, although it contended they were not applicable to the facts of the case. The condition, relating to possible indemnity in this situation, is contained in paragraph (k), which is set forth above.

Cyclone contends that the foregoing clause is not so broad as to include indemnity to Sunbeam for liability resulting from its own negligence or that of its employee.

In Westinghouse Electric Elevator Co. v. La Salle Building Corp. (1946), 395 Ill. 429, we were called upon to construe a contract containing an indemnity clause wherein the contractor agreed to hold harmless an owner against liability arising out of the acts of the contractor, or his agents, in the course of the work to be done under the contract. Under the clause there considered, we had to determine if the owner were entitled to indemnity from liability resulting from his own negligence. On pages 432 and 433, we stated:

"It is a general rule governing the construction of contracts that unless a contract is ambiguous, its meaning must be determined from the words used; and courts will not, because a more equitable result might be reached thereby, construe into the contract provisions that are not therein. [Citation.] In construing a contract which purports on its face to be a complete expression of the entire agreement, courts will not add thereto another term, about which the agreement is silent."

In Westinghouse, we concluded that the language in the contract agreeing to indemnity was specifically limited to acts or omissions of the contractor or his agents. We refused to read into the contract language requiring the contractor to indemnify the owner against the latter's own negligence, and at page 433, we further stated: "It is quite generally held 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 [citations], or such intention is expressed in unequivocal terms."

Westinghouse does not say that an indemnity agreement may not be entered into: all it requires is that to accomplish this purpose there should be explicit language or an unequivocal expression of intent.

Recently, in Tatar v. Maxon Construction Co. (1973), 54 Ill.2d 64, we had occasion to reaffirm the general rules of Westinghouse set forth above. In Tatar, the clause providing for indemnity covered all claims "by reason of, arising out of, or connected with, accidents, injuries, or damages, which may occur upon or about the Subcontractor's work." (54 Ill.2d 64, 66.) We declined to extend such a clause to include indemnity against one's own negligence.

We also noted in Tatar that it served no useful purpose to attempt to analyze or reconcile the numerous cases interpreting indemnity clauses. Each depends upon the particular language used and the factual setting of the case. "The only guidance afforded is found in the accepted rule of interpretation which requires that the agreement be given a fair and reasonable interpretation based upon a consideration of all of its language and provisions." Tatar v. Maxon Construction Co. (1973), 54 Ill.2d 64, 67.

The provision before the court in this case is more restrictive than that considered in Tatar. Here, the applicable clause refers to claims "arising out of any such work" — "such work" being that performed by Cyclone's employees under the contract. In Tatar, indemnity was to cover all claims by reason of, or arising out of, or connected with, ...


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