Zadak v. Cannon

• Decision Date: 18 November 1974
• Docket Number: No. 46559,46559
• Citation: 319 N.E.2d 469,59 Ill.2d 118
• Parties: 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.
• Court: Illinois Supreme Court

Page 469

319 N.E.2d 469

59 Ill.2d 118

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.

No. 46559.

Supreme Court of Illinois.

Nov. 18, 1974.

Kralovec, Sweeney, Marquard & Doyle, Chicago (Edward V. Scoby, Chicago, of counsel), for appellant.

Hinshaw, Culbertson, Moelmann, Hoban & Fuller, Chicago (D. Kendall Griffith, Karl M. Tippet, and E. Michael Kelly, Chicago, of counsel), for appellee.

DAVIS, Justice.

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 allededly 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, 307 N.E.2d 605), 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 paragrah (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, 70 N.E.2d 604, 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, 70 N.E.2d on page 606, 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...