“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 a 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 Georgia R. Co.,
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
Bohannan v. Southern R. Co.,
In the case of Batson-Cook Co. v. Industrial Steel Erectors, 257 F2d 410 (5th Cir. 1958) (U.S. Dist. Court, N. Dist. Ala.), in which the present plaintiff in error was the party plaintiff, the court construed the identical clause and contract employed in the instant case not to include recovery for losses caused by the general contractor-indemnitee’s own negligence. While the above case is not necessarily binding on the courts of this State, it is pérsuasive inasmuch as the identical plaintiff and clause are involved and insofar as it is consistent with the applicable Georgia law. That case has been subsequently followed, distinguished and questioned. In Moses-Ecco Co. v. Roscoe-Ajax Corp., 320 F2d 685, 688 (1963) (U. S. Ct. of Appeals, D. G), the court, in reaching an opposite result in construing a similar clause, distinguished the cases by the fact that the clause presently under examination did not contain specific references to claims brought by employees of the subcontractor-indemnitor and, as the court in the Batson-Cook case had pointed out, there were many situations other than negligence of the indemnitee to which- the clause might have applied. The court further stated, fn. 2, that, “[t]o the extent that the Batson-Cook case may appear to require the use of special legal terms such as ‘fault,’ ‘negligence’ or ‘liability,’ we decline to follow it,” citing the cases of Maiatico v. Hot Shoppes, Inc., 109 U. S. App. D.C. 310, 287 F2d 349 (1961) and General Acc. Fire & Life Assur. Corp,.
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Ltd. v. Smith & Oby Co., 272 F2d 581 (6th Cir. 1959) (77 ALR2d 1134), for the proposition that “[n]o particular form or words are needed but the intent to waive negligence must be clear.” The court in the Batson-Cook case, supra, p. 413, expressly rejected the method of resolving the matter “by matching this or that case against language which, by the very nature of things, varies as scriveners set out to draft these instruments or businessmen uncritically put their signatures on printed traditional forms.” This idea was expressed in the case of Natl. Surety Corp. v. Erskine & Sons, Inc., 188 FSupp. 687, 688 (1960), as follows: “Actually, in applying the general rule of Ohio law to a particular indemnity clause, a court might even reject the specific use of the word ‘negligence’ in determining the scope of the agreement, for when a court is called upon to ascertain the intention of the parties to an indemnity contract, it must take into consideration not only the language of the contract, but also the situation of the parties and the circumstances surrounding them at the time the contract was made. City of Cleveland v. Baltimore & Ohio R., 6 Cir. 1934, 71 F2d 89. See 28 O.Jur.2d 311. Thus, even though the parties have agreed essentially upon the facts and the law controlling in this case, the clause cannot be construed solely through a comparison of the language here with the language in other situations entirely divorced from the circumstances of the instant case.” This rejection of a reliance solely on the “strict construction” rule—-requiring precise wording or a particular form—in favor of a construction which takes into consideration the relative status of the parties, the circumstances attending the contract and their object in making the instrument, has been followed by a number of jurisdictions. See Jacksonville Terminal Co. v. Railway Express Agency, Inc., 296 F2d 256 (1962);
In the case at bar there are several circumstances which might legitimatély be considered along with the general and unspecific wording of the indemnity clause. First, the contract form was a standard form, copyrighted by the American Institute of Architects and furnished by the contractor. The principles of contract law, that a contract, when ambiguous, is construed most strongly against the party who prepared it, is applicable to indemnity contracts. Southern R. Co. v. Coca-Cola Bottling Co., 145 F2d 304, 307 (4th Cir. 1944). Second, the general contractor occupied a somewhat superior bargaining position to that of the subcontractor, in that the subcontractor, competing with other subcontractors to obtain the job, was forced to either accept the contract as it was written in order to have his bid accepted, or to reject it entirely. “Validity is almost universally denied to contracts exempting from liability for its negligence the party which occupies a superior bargaining position.”
Third, the contract between the general contractor and the subcontractor required that the subcontractor carry the following insurance: “Minimum public liability insurance: $500,000/ $1,000,000.00; Minimum property damage insurance: $300,000/ $500,000.00; Automobile liability insurance: bodily injury: $300,000/$500,000.00; property damage: $300,000.00.” All of the above types of insurance are such as ordinarily provide coverage for damages which might be recovered against the subcontractor-indemnitor as a result of his own .negligence, rather than that of some other party such as the general contractor. To further strengthen the probability that the contract did not contemplate indemnity against the indemnitee’s negligent act, the petition shows that the indemnitee itself carried liability insurance to cover its liability as a result of its own negligence. While this is not conclusive as to the intent of the parties, it at least indicates that the plaintiff-indemnitee was not relying solely, if at all, upon the indemnity agreement with the defendant-subcontractor for indemnification for damages arising out of its own possible future negligent acts.
Our conclusion, then, based upon a consideration of the foregoing principles and authorities, is that the intention to indemnify the plaintiff-indemnitee was not expressed plainly, clearly and unequivocally, in sufficiently specific words, and this fact, together with a consideration of the entire contract, the circumstances of the parties and the nature of their .undertaking, as above discussed, compels the decision that no such construction be -given the agreement. The court did not err in sustaining the general demurrer to the petition.
Judgment affirmed.