Kellogg Co. v. Sanitors, Inc.
| Decision Date | 18 June 1973 |
| Parties | KELLOGG COMPANY, fub CNA Insurance Company, Appellees, v. SANITORS, INC., Appellant. |
| Court | Tennessee Supreme Court |
Hunter K. Cochran, Jr., Memphis, for appellant; Cochran, Carey, Fleischer & Mullikin, Memphis, of counsel.
Leo Bearman, Sr., Leo Bearman, Jr., Memphis, for appellees.
This cause comes to this Court under a stipulation of facts presenting the issue of whether under a contract of indemnity the indemnitee (Kellogg) is entitled to be indemnified by the indemnifier (Sanitors) even though the loss be caused by the negligence of the indemnitee.
Kellogg and Sanitors entered into a contract whereby Sanitors was to furnish janitorial, maintenance and maid service at one of Kellogg's plants. This contract contained the following indemnity clause the word 'contractor' therein referring to Sanitors, and the word 'purchaser' therein referring to Kellogg:
INDEMNITY: Contractor shall indemnify and save Purchaser harmless from and against all losses or damages, and all claims, demands, suits, actions, payments and judgments, including attorney's fees, arising from personal injuries (including death), losses or damages to property, or otherwise, brought or recovered against Purchaser by reason of any act or omission of Contractor (or any of his subcontractors) in the execution or guarding of the work, or by reason of any liens, claims, demands and debts for all labor performed and for all equipment and materials furnished under this Contract.
Contractor shall be responsible for the conduct and safety of his employees and his sub-contractors and the employees thereof in the performance of the work hereunder and while on the premises of the Purchaser, and the Contractor agrees that he will hold the Purchaser and his officers and employees harmless and indemnify them from and against any and all claims of any of such employees for personal injuries suffered by any of such employees in the performance of such work or while on the premises of the Purchaser.
James Oldham, an employee of Sanitors, was on the premises of Kellogg carrying out the provisions of the contract between Kellogg and Sanitors when he received personal injuries due to the negligence of Kellogg. As a result, in a suit settled out of court, Kellogg through its liability insurance carrier, paid Oldham the sum of $4,037.48. In the case sub judice brought by Kellogg against Sanitors to recover this sum, plus attorneys' fees, under the indemnity clause of the contract, the trial judge held Kellogg was entitled to recover from Sanitors.
In Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (1964), we held it was not against public policy to contract to be indemnified against one's own negligence but such a provision in indemnification contracts would have to be expressly clear and in unequivocal terms. In the Kroger case we...
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