Batson-Cook Co. v. Georgia Marble Setting Co.

• Decision Date: 09 September 1965
• Docket Number: No. 41379,No. 1,BATSON-COOK,41379,1
• Citation: 112 Ga.App. 226,144 S.E.2d 547
• Parties: COMPANY for Use etc., et al. v. GEORGIA MARBLE SETTING COMPANY
• Court: Georgia Court of Appeals

Page 547

144 S.E.2d 547

112 Ga.App. 226

BATSON-COOK COMPANY for Use etc., et al. v. GEORGIA MARBLE SETTING COMPANY.

No. 41379.

Court of Appeals of Georgia, Division No. 1.

Sept. 9, 1965.

Syllabus by the Court

The indemnity agreement in a contract between a general contractor, the indemnitee, and a subcontractor, the indemnitor, did not express plainly, clearly, specifically and unequivocally the intention to include indemnification for damages arising out of the indemnitee's negligent acts and this fact, combined with a consideration of the entire contract, the circumstances of the parties and the nature of their undertaking, militates against such a construction. The court, therefore, did not err in sustaining the general demurrer to the plaintiff-indemnitee's petition, which sought indemnification for damages paid under a settlement of a suit against the indemnitee by an employee of the indemnitor who was injured as a result of the indemnitee's negligence.

Batson-Cook Company sued Georgia Marble Setting Company for the use of itself and Liberty Mutual Insurance Company upon an indemnity agreement entered into by and between Batson-Cook Company as general contractor and Georgia Marble Setting Company as subcontractor. The petition alleged substantially as follows: Batson-Cook Company was the general contractor in the construction of the addition to the Federal Reserve Bank Building on Marietta Street in Atlanta, Georgia. Georgia Marble Setting Company was a sub-contractor performing a sub-contract in connection with the erection of marble in the front and back walls of the building. Section 7 of the sub-contract between Batson-Cook Company and Georgia Marble Setting Company provided as follows: 'Section 7. Subcontractor assumes entire responsibility and liability for losses, expenses, demands and claims in connection with or arising out of any injury, or alleged injury (including death) to any person, or damages, or alleged damages, to property of Contractor or others sustained or alleged to have been sustained in connection with or to have arisen out of or resulting from the performance of the work by the Subcontractor, his subcontractors, agents, servants and employee, including losses, expenses or damages sustained by Contractor, and agrees to indemnify and hold harmless Contractor, his agents, servants, and employees from any and all such losses, expenses, damages, demands and claims, and agrees to defend any suit or action brought against them, or any of them, based on any such alleged injury or damage, and to pay all damages, cost and expenses, including attorneys' fees, in connection therewith or resulting there from. The provisions of this paragraph are cumulative and shall in no wise diminish the obligation resting upon the Subcontractor under any other provision of this contract, or by operation of law.' On or about April 20, 1961, William C. Henry, an employee of Georgia Marble Setting Company, was injured as the result of a fall while working as a stonemason in undertaking to perform the sub-contract of the Georgia Marble Setting Company with the plaintiff, Batson-Cook Company. William C. Henry was working on a scaffold which belonged to Georgia Marble Setting Company suspended on the outside front wall of the Federal Reserve Bank above Marietta Street near the fifth floor. A marble slab weighing about four hundred pounds was being lowered to William C. Henry by Chester Pullen, an employee of Georgia Marble Setting Company, by means of a hand-operated winch belonging to Georgia Marble Setting Company. The marble was being lowered to be installed in the front wall of the building in performance of the sub-contract of Georgia Marble Setting Company with Batson-Cook Company. In lowering the heavy four-hundred-pound piece of marble to William C. Henry on the scaffold, Chester Pullen, the employee of Georgia Marble Setting Company, lost control of the handle of the winch and let the four-hundred-pound marble slab fall, striking the scaffold on which William C. Henry was working, causing William C. Henry to fall a distance of five floors to the ground, resulting in serious and permanent personal injuries. William C. Henry filed suit against Batson-Cook Company in the Superior Court of Fulton County, seeking to recover the sum of $250,000 for alleged personal injuries as a result of the injuries received in said fall. The plaintiff in said suit alleged that Batson-Cook Company was negligent in failing to cover up the space or cavity between the hoist tower and the building below where the plaintiff was working, was negligent in failing to keep the area on the roof in the vicinity where the winch was being operated clear of lumber and debris and in stacking lumber within two and one-half to three feet of the winch operator, and the petition further alleged that an employee of Batson-Cook Company, whose name was unknown to the plaintiff, threw a board so that one end of the Board flew up, striking the elbow of Chester Pullen, causing him to turn loose the handle on the hand-operated winch and causing the marble to fall. The negligence of Batson-Cook was alleged to be the sole cause of the injuries to William C. Henry. The plaintiff, Batson-Cook Company, wrote Georgia Marble Setting Company, calling attention to the indemnity agreement set forth in Section 7 of the contract and requested that Georgia Marble Setting Company and its insurance carrier, The Travelers Insurance Company, take over the defense of the suit brought by William C. Henry against Batson-Cook Company under and in accordance with the provisions of the contract of indemnity executed. Georgia Marble Setting Company acknowledged receipt of the letter from Batson-Cook Company, but declined to take over the suit as requested. Thereafter, the case of William C. Henry against Batson-Cook Company came on for trial before the Honorable Ralph H. Pharr, Judge of the Superior Court of Fulton County, and a jury, and after the presentation of evidence over a period of three days Batson-Cook Company and Liberty Mutual Insurance Company settled the case by payment of the sum of $50,000 to William C. Henry, which Batson-Cook Company and Liberty Mutual Insurance Company allege was a reasonable sum to be paid in settlement and adjustment of the case and to avoid danger an exposure to a recovery of a verdict and judgment in a substantially larger amount. Batson-Cook Company further incurred in connection with the defense of the suit brought against it by William C. Henry attorneys' fees and expenses totalling $2,519.95. Judgment was prayed for $52,519.95. There was no allegation in the petition that the negligence of the Georgia Marble Setting Company was a contributing proximate cause of the injuries suffered by William C. Henry. The general demurrers to the petition filed by Georgia Marble Setting Company were sustained and the petition was dismissed. To the judgment sustaining these demurrers and dismissing the action the plaintiff in error excepts.

Bryan, Carter, Ansley & Smith, W. Colquitt Carter, Atlanta, for plaintiff in error.

Gambrell, Harlan, Russell & Moye, Charles A. Moye, Jr., Harold N. Hill, Jr., Atlanta, for defendants in error.

FELTON, Chief Judge.

'Except in cases prohibited by statute, or where a public duty is owed, as by a common carrier of goods or passengers, a party may by valid contract relieve himself from liability to the other party for particular injuries or damages and for ordinary negligence, and such an agreement is not void as against public policy. Hearn v. Central of Ga. R. Co., 22 Ga.App. 1, 3-7, 95 S.E. 368; Dowman-Dozier Mfg. Co. v. Central of Ga. R. Co., 29 Ga.App. 187, 114 S.E. 815.' King v. Smith, 47 Ga.App. 360, 364(2), 170 S.E. 546, 548. 'According to the great weight of authority the parties may validly bind themselves by contract to indemnify the indemnitee against or relieve from liability on account of his own future acts of negligence.' 175 A.L.R. 8, 25; 27 Am.Jur., Indemnity, § 9, n. 20 (and see Supp.); Am.L.Inst. Restatement of Contracts § 572; Louisville & N. R. Co. v. Atlantic Co., 66 Ga.App. 791, 801-802, 19 S.E.2d 364 and cit.

While the validity of such contracts with respect to public policy is apparently generally accepted, most of the cases involving such contracts deal with the construction of the particular language employed in each individual indemnity agreement, and there is a wide divergence in the cases on the subject in the various jurisdictions. The reasoning in the majority of cases seems to be that the construction allowing indemnification of the indemnitee against his own negligence is not against public policy if, and only if, such an intent is expressed in plain, clear and unequivocal terms. See Bohannon v. Southern Ry. Co., 97 Ga.App. 849, 850, 104 S.E.2d 603 and cit.; Rome Builders Supply v. Rome Kraft Co., 104 Ga.App. 488(3), 122 S.E.2d 133; 175 A.L.R. 8, 30. 'In the overwhelming majority of the cases the result reached by [the courts'] interpretational efforts can be condensed into the simple rule that where the parties fail to refer expressly to negligence in their contract such failure evidences the parties' intention not to provide for indemnity for the indemnitee's negligent acts.' 175 A.L.R. 8, 30, citing cases, including Fisk Tire Co. v. Hood Coach Lines, 54 Ga.App. 401, 188 S.E. 57. 'In support of this rule it has been stated that general...