Joe Adams & Son v. McCann Construction Company

475 S.W.2d 721, 15 Tex. Sup. Ct. J. 16, 1971 Tex. LEXIS 247
CourtTexas Supreme Court
DecidedOctober 6, 1971
DocketB-2415
StatusPublished
Cited by69 cases

This text of 475 S.W.2d 721 (Joe Adams & Son v. McCann Construction Company) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Joe Adams & Son v. McCann Construction Company, 475 S.W.2d 721, 15 Tex. Sup. Ct. J. 16, 1971 Tex. LEXIS 247 (Tex. 1971).

Opinions

WALKER, Justice.

The question to be decided is whether subcontractor-petitioner, Joe Adams & Son, is legally obligated to indemnify general contractor-respondent, McCann Construction Company, Inc., against the consequences of the respondent’s own negligence. The trial court answered the question in the negative and rendered a summary take-nothing judgment in McCann’s suit for indemnity. The Court of Civil Appeals answered the question in the affirmative, reversed the trial court’s judgment, severed the issue of indemnity from the issues of attorney’s fee, costs, etc., rendered summary judgment in favor of McCann for indemnity in the first cause and remanded the remaining cause to the trial court. 458 S.W.2d 477. We reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

McCann was the general contractor for the erection of a building and contracted with Adams to do certain concrete work. McCann built wooden forms extending some eighteen to twenty feet above ground level into which forms employees of Adams were to pour concrete from above for piers, beams and canopies. While three of Adams’ employees were on top of the forms pouring concrete, the forms collapsed, and they, the wet concrete and the three employees all fell to the ground. The employees were injured and they collected workmen’s compensation benefits from Adams’ insurer. They then sued McCann who called on Adams to defend the suit and filed a third party indemnity action against Adams. The trial court severed out the third party action and tried the damage suit to a jury. All three plaintiffs recovered judgments against McCann for substantial sums as damages upon findings by the jury that certain acts and omissions by McCann in connection with the construction and use of the forms were negligent and proximate causes of the injuries.

After the judgment for damages against McCann became final, both McCann and Adams moved for summary judgment in the severed third-party indemnity action. The trial court overruled McCann’s motion and granted Adams’ motion. As heretofore indicated, the Court of Civil Appeals reversed.

McCann’s right to indemnity from Adams, and therefore the correctness of the Court of Civil Appeals’ judgment, turns on [723]*723the proper interpretation of the written contract under which Adams was doing the concrete work. The relevant provisions are as follows:

Article V. The Contractor [Adams] shall effectually secure and protect its work and shall bear and be liable for all loss or damages of any kind which may happen to the work or any materials to be incorporated therein at any time prior to the final completion and acceptance thereof. McCann Construction Company, Inc., shall not be responsible for any damage done to the work or property or [of] the Contractor, unless such damage shall be caused by the direct negligence of McCann Construction Company, Inc.
* * * * * *
Article VIII. The Contractor shall protect, indemnify and save McCann Construction Company, Inc., and Owner harmless from any and all claims, suits and actions of any kind or description, for damage or injuries to persons or property received or sustained by any party or parties through or on account of any act or in connection with the work of the Contractor or its agents or servants or subcontractors, or any default or omission of the Contractor, or its agents or servants or subcontractors in the performance of this contract, or through the use of improper or defective materials or tools or on account of injury or damage to adjacent buildings or property occasioned by work under this contract, or through failure to give the usual requisite and suitable notices to all parties, whose persons, estates or premises may be, in any way, interested in or affected by the performance of this work, and at its own cost shall defend any and all suits or actions that may be brought against McCann Construction Company, Inc., or Owner by reason thereof, and in the event of the failure of the Contractor to defend such suits McCann Construction Company, Inc., shall have the right and power to defend same and charge all costs of such defense to the Contractor or its Surety.

McCann directs our attention to the italicized language quoted above. It then points out that the work being performed at the time of the injuries was that of pouring concrete, that the forms were constructed for Adams to pour concrete into, that the latter’s contract could not be performed without the forms, and that the filling of the forms by Adams’ employees was the immediate cause of their collapse. The injuries were thus received, we are told, through or on account of “an act or in connection with the work” of Adams within the meaning of the contract. We do not agree. McCann’s liability arises from the fact that the accident was proximately caused by its own want of care, and there is no suggestion that Adams or anyone under its supervision or control was at fault in any way. We thus have a casualty that would not have occurred but for the negligence of the indemnitee and to which the indemnitor contributed in no way except by doing its work in a careful and prudent manner.

Texas follows the general rule that an indemnity agreement will not protect the indemnitee against the consequences of his own negligence unless the obligation is expressed in unequivocal terms. It is not necessary for the parties to say, in so many words, that they intend to save the indemnitee harmless from liability for his own wrongs, but it is necessary for that intention to clearly appear when all the provisions of the contract are considered in the light of the circumstances surrounding its execution. This was pointed out in Spence & Howe Construction Co. v. Gulf Oil Corp., Tex.Sup., 365 S.W.2d 631, where we stated that:

* * * Ordinarily, however, one does not contract against the results of his own negligence. Such agreements, except for insurance contracts, must be regarded as exceptional rather than usual in the majority of business transactions. [724]*724Before such indemnity contracts may be enforced it must clearly appear that the contracting parties intended that the in-demnitor would be held liable for damages resulting from the negligence of the indemnitee.
******
In Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775, this Court discussed the rule that an indemnity agreement will not protect the indemnitee against the consequence of his own negligence unless the obligation is expressed in unequivocal terms. The obvious purpose of this rule is to prevent injustice A contracting party should be upon fair notice that under his agreement and through no fault of his own, a large and ruinous award of damages may be assessed against him solely by reason of negligence attributable to the opposite contracting party. See, Perry v. Payne, 217 Pa. 252, 66 A. 553. Texas does not, however, follow the refinement of the rule which requires that the agreement, in order to effectually embrace the negligence of the indemnitee, should expressly so state.
******
The general rules relating to the construction of contracts are applicable to indemnity contracts.

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Bluebook (online)
475 S.W.2d 721, 15 Tex. Sup. Ct. J. 16, 1971 Tex. LEXIS 247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/joe-adams-son-v-mccann-construction-company-tex-1971.