Blain v. Sam Finley, Inc., 45424

Decision Date29 September 1969
Docket NumberNo. 45424,45424
CourtMississippi Supreme Court
PartiesW. E. BLAIN, Norman C. Stevens, Jr. and J. W. Brewer, d/b/a W. E. Blain & Son, Contractors v. SAM FINLEY, INC.

Cox, Dunn & Clark, Jackson, for appellants.

Watkins & Eager, William E. Suddath, Jr., Jackson, for appellee.

BRADY, Justice:

W. E. Blain & Son, Contractors, hereinafter referred to as Blain, on or about July 1, 1964, entered into a contract with the Mississippi State Highway Commission for the construction of a five mile, two lane section of highway in Jackson County, Mississippi, north of and parallel to U.S. 90, designated as Federal Aid Project No F-003-1(22). Thereafter, on June 11, 1965, the prime contractor, Blain, entered into a subcontract with Sum Finley, Inc., hereinafter referred to as Finley. The sections of that contract which are relevant to the present case are as follows:

8. PROTECTION OF WORK AND INDEMNITY AGAINST NEGLIGENCE:

Subcontractor agrees to adequately and properly protect the work called for hereunder and to so perform the subcontract and subcontract work as to avoid injuyr or damages to persons or property for which Contractor may be held liable in damages and as to avoid any negligence in the performance of or omission to perform the contract and work for which Contractor may be held liable and to fully indemnify and save harmless Contractor from all such claims for damages and from all expenses and attorneys' fees incident thereto, arising out of or in anywise connected with the subcontract work.

12. INDEMNITY:

In full exoneration of Contractor, Subcontractor shall faithfully complete the work hereunder to the satisfaction of the Owner and shall promptly pay all claims for labor, materials, equipment, supplies and other items, including but not limited to premiums incurred for surety bonds and insurance and all taxes, licenses and assessments, which damages, penalties and interest thereon, pertaining to or arising out of the subcontract work for which Contractor may be held liable on the Prime Contract bond or otherwise. Subcontractor shall also pay all of the expense and cost and attorney's fees incurred by Contractor in the enforcement of the conditions and obligations of this subcontract and of any bond furnished in connection herewith or incurred in the investigation or defense of any action arising out of this subcontract or out of the non-payment of any claim of any third party, whether such claim is valid or not, or out of the performance or non-performance of the work hereunder. Subcontractor shall also pay all of the expense, cost, and attorneys' fees for which Contractor may be liable on the Original Contract bond or otherwise to persons furnishing labor, materials, equipments, supplies and other items therefor. Subcontractor agrees to place Contractor in funds to discharge any claims, demands, costs and attorneys' fees as aforesaid and to hold and save Contractor harmless from all liability and loss in reference thereto.

On or about July 27, 1965, Douglas Harvey, an employee of Blain, was killed in an automobile accident which occurred at approximately 9:45 P.M. on a portion of the highway then under construction, when Harvey collided with a parked asphalt spreader belonging to Finley. The highway at the time of the accident was closed to the traveling public.

On or about February 8, 1966, the administrator of the estate of the deceased filed an action in the Circuit Court of Jackson County against Blain and Finley charging both defendants with negligent acts contributing to and causing the death of Harvey. On February 24, 1966, after the suit had been filed, Blain's attorney made a demand on Finley by letter that Finley take over the defense of Blain, citing as the basis therefor paragraph 8 of the subcontract entered into by Blain and Finley. Finley declined to assume the defense of Blain and denied the right of Blain to indemnification. By letter dated March 14, 1966, Blain's attorney notified Finley's attorney that Blain would proceed to defend the action and would look to Finley for indemnification under the subcontract, including indemnification against the expense of litigation and attorneys' fees. Blain's attorney thereafter cooperated with Finley's attorney in the common defense of the action. The jury returned a verdict and judgment jointly and severally against both defendants. The defendants appealed the case to the Mississippi Supreme Court. Blain's attorney by letter dated October 26, 1967, again requested that Finley resume Blain's defense and again asserted Blain's right to indemnification under the subcontract. The Supreme Court reversed the jury verdict and judgment and entered judgment for the defendants in Blain v. Sullivan, 204 So.2d 436 (Miss.1967). The Supreme Court held that 'the sole proximate cause of the accident and Harvey's death was his failure to keep his car under such control as vigilant caution and constant lookout would have required.' 204 So.2d at 439. In addition, Blain was held not to be liable because the 'asphalt spreader involved in the accident was owned and exclusively under the control of Finley as an independent contractor.' 204 So.2d at 439.

On December 4, 1967, Blain's attorney by letter asserted again Blain's right to expenses and attorneys' fees under paragraphs 8 and 12 of the subcontract. Upon Finley's refusal to indemnify, Blain filed suit against Finley in the Circuit Court of the First Judicial District of Hinds County for expenses incurred in the investigation and defense of the suit by Harvey's administrator and for reasonable attorneys' fees and for expenses and attorneys' fees arising out of the suit for indemnification in the total amount of $9,344.59.

Finley's attorney made a motion to transfer the case to the chancery court because the real interest was Blain's insurer, Western Casualty and Surety Company and equities alleged to exist. It was later stipulated by counsels that at the time of the accident Finley was insured by the Fidelity & Casualty Company of New York. Likewise, by stipulation the motion to transfer the cause to the chancery court was withdrawn, and it was further agreed that, although the cause would be tried in the circuit court, all items admissible into evidence in the chancery court would be admissible and all rules of law and equity that could be applied by the chancery court would be applied by the circuit court.

Based upon the stipulation of fact, the argument presented to the court and the applicable authorities, the circuit judge entered judgment for the defendant. From that judgment an appeal was taken to this Court.

As a general rule an indemnitee is entitled to recover, as a part of the damages, reasonable attorneys' fees and reasonable and proper legal costs and expenses which he is compelled to pay as a result of suits by or against him in reference to the matter against which he is indemnified,...

To continue reading

Request your trial
13 cases
  • Valloric v. Dravo Corp.
    • United States
    • West Virginia Supreme Court
    • March 3, 1987
    ... ... We recognized in Sydenstricker v. Unipunch Products, Inc., 169 W.Va. 440, 445, 288 S.E.2d 511, 515 (1982), that there are two ... v. Fischer Sound and Aggregate, Inc., 281 N.W.2d 838 (Minn.1979); Blain v. Sam Finley, Inc., 226 So.2d 742 (Miss. 1969); 41 Am. Jur.2d Indemnity ... ...
  • Mississippi Power Company v. Roubicek
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 3, 1972
    ...Court, in its Erie-reading of State law, rejected as dicta and unsound law the Mississippi Supreme Court's recent statement in Blain v. Finley, 1969, 226 So.2d 742.5 The Mississippi Court there "The determinative issue in the case at bar revolves around the interpretation and effect to be g......
  • Kroger Co. v. Chimneyville Properties, Ltd., Civ. A. No. J90-0378(L).
    • United States
    • U.S. District Court — Southern District of Mississippi
    • November 19, 1991
    ... ... Shell Western E. & P., Inc., 778 F.2d 235, 237 (5th Cir.1985). It has also been generally observed ... Compare Blain v. Sam Finley, Inc., 226 So.2d 742, 746 (Miss.1969) (indemnitee will be ... ...
  • Certain London Market Ins. v. Pa Nat. Mut. Cas.
    • United States
    • U.S. District Court — Northern District of Mississippi
    • June 20, 2003
    ...to protect an indemnitee against the consequences of his own negligence. City of Jackson, 624 F.2d at 1388 (citing Blain v. Sam Finley, 226 So.2d 742 (Miss. 1969)). See also, Martin v. Sears, Roebuck & Co., 24 F.3d 765, 767 (5th Cir.1994)(quoting Blain, 226 So.2d at 746) (Under Mississippi ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT