*1 Krоger Company, Plaintiff in Error, v. E. Giem, Individually dba Seth E. Giem
Seth & Associates, E. Bouchard & Co., John Inc., Sons
Defendants in Error.
Petition for Denied 1966. *3 William J. Minick, & Trabue, Sturdivant Harbison, Miller Manier, Crouch, & Manier, White Harbison, plaintiff for Nasliville, error. Herod, Nash- Carpenter, & Goodpasture, Courtney, Woods Memphis, for E. Seth Giem. ville, N. Stokes', Carl Cummings Glasgow & Conners, & Boult, Hunt, E. & Inc. Bouchard Sons Nashville, Co., John Adams opinion of delivered the the Court. Mr. Justice White Appeals ap- affirmеd the trial court Court proving which found all issues verdict against plaintiff favor of the defendants. We argued granted has been at the certiorari case Court. bar Company un- an action for commenced damages against
liquidated wherein it defendants, upon sounding sought in tort theories, two to recover one upon following contract, state of the other in facts: *4 Company (Kroger) Kroger let a written contract
The Memphis (Giem) Associates, Seth Giem remodeling Kroger’s Nashville certain additions warehouse. part of the work to John E. sub-contracted
Giem (Bouchard). Company, Inc. & Sons Bouchard days A signing few tbe before actual contract Kroger, with there was a officials between the conference of Griemand at its in In home office Cincinnati. requested this G-iem conference his sub-con- hе and Kroger’s tractors be named on certificate insurance “protection response receive like to this re- ”. quest a letter was written to Griem,under the date August in 26, 1957, which it was said: naming
“Attached hereto, Certificate of Insurance your company as an additional insured under Kroger Company’s coverage blanket fire extended your insurance. This insurance will cover interest at our warehouse in location Nashville, Tennessee.
“Although agreement specify our contractual does that the will contractor be as addi- named an policy, tional insured under the builders risk we do protect requested by contractor when to do so naming him as an additional insured. It not our is policy, coverage however, to extend sub-con- tractors. you “I trust that will find attached certificate satis- ’’
factory. signed by above letter was an in insur- official department Kroger. dispute is There no ance about having this letter been sent and received Griem. part work to
Griem sub-contracted Bouchard performing contract two Bouchard’s its em- process ployees, cutting through a hole while pipe, warehouse to install a vent the roof which using acetylene they torch, were allowed molten metal sparks upon highly to fall some flammable insulation caught intensely, and burned which fire *5 “exploded” gasoline. large
some witnesses said like Two stacks of material had been stored inside ware- this the insulating in and house to be used freezer banana rooms. damage Kroger The water ware- and the smoke fire, quite grocery house and stock was extensive. law first count of is a common
The the declaration against alleging count that were defendants, both both quantities negligent storing igniting large in plain- resulting damage to of insulation material $775,000.00. warehouse in the amount tiff’s specifically charged that the declaration defend- gross negligence (1) they guilty did ants were that they properly supervise (2) work; not did remove from where area work was flammable material neglected (3) they mate- cover flammable done; be sparks operation keep cutting- fall- from from rial to by; (4) ing they close on failed to have watchman it; (5) they properly did not work with coordinate the be insulation material had to result that the flammable going while work on. the warehouse stored ' against is count of declaration G-iem second only, alleged of Article violation and is for Kroger,'which reads: building between Giem contract adequate continuously maintain shall contractor “The pro- damage protection from and shall of all his work injury arising property in con- from the owner’s tect gоod hold He shall make with this contract. nection damage injury.” any such harmless owner guilty plea of not and then filed a Giem guilty alleged plea contribu- special replication plea By Giem tory negligence. amended agreed maintain insurance had contended property for bis benefit to value of tbe tbe involved. Giem policy claimed that since be was a named insured in tbe recovery against there could no be him because permit company, Lloyds would tbe insurance of London, subrogated against to be its own insured. was thus Giem *6 taking position occupied relationship tbe that be tbe same Lloyds Kroger general with of London as did under its policy by company. insurance issued this insurance provision Giem indemnity contended that the relied on in tbe second count of tbe declaration not could be con- indemnify Kroger negligence strued so as to because its contributed tbe to loss. pleas guilty by special
Bouchard filed and then pleas Kroger guilty contributory contended that was negligence storing in tbe flammable insulation material where work was to be done and further that as a sub- contractor it was entitled, contract, under tbe to the agreement Kroger respect benefit of Giem’s with with to being Kroger included additional under insured ’s policy Lloyds insurance with of London. period proof
After an extended tbe was case sub- jury mitted general to under instructions to find a report respect verdict also to special in to cеrtain Upon jury issues. consideration thereof tbe returned a reported verdict in favor of both defendants and special issues tbe as follows: guilty negligence proxi-
That both defendants were mately causing damages tbe and losses as set out tbe jury Kroger guilty Tbe declaration. found that was negligence proximately causing damages losses jury set out the declaration. In other words tbe found plaintiff guilty negligence tbe and both defendants proximately damages
which caused or to the contributed general charge gen- under court, jury, plain- merely eral verdict meant that the tiff could not recover that its suit dismissed. was reported respect also on certain with matters Kroger by to the between which contract and Griem Krоger carry required found was to to insurance protect by negligent the defendant from loss de- Griem by partially completed improve- struction fire of the required carry ment; that to was to insurance protect pay Kroger having the defendant Griemfrom negligent by part for the destruction fire of the per- being warehouse which the new renovation required carry formed; insurance protect pay having Kro- defendant Griem ger negligent equipment, loss of merchandise, fire *7 supplies Kroger in was warehouse; stored said and that required carry protect to the to defendant insurance expense by having pay from to Griem incurred extra Kroger negligently as a result of the caused fire. jury respond special a issue to to was also asked preponderance a or not found from of of whether it all Company, Kroger evidence that the its servants, of the charge agents employees, or actual and control of response interrogatory, In to this the work. construction yes. jury the answered foregoing, the can seen that of it be
From recitation questions. with two there ma- First, is we are confronted to sustain verdict of the in the record the evidence terial judgment jury, the trial court thereon, the the finding Appeals holding judgment the Court contributory negligence guilty such question recovery. The second is whether bar would
467 whereby said Article 30 of the Griem contract, agreed indemnify Kroger, to recover entitles from Griemas a matter of law. quеstion considering contributory negli
In gence Kroger, knowledge we do so with the that the jury reply special, returned affirmative to the issue Kroger, agents to as to submitted it whether or not its employees, guilty negligence proximately causing were damages complained the losses and inof the declaration. making In determination must construe we favorably evidence most defendants here uphold allow reasonable inferences which tend to all jury. duty jury verdict of It is the to consider may all of the and to evidence the differences that settle appeal develop Upon therefrom. here assume that all we such have been such differences settled verdict, only to decide we have whether the circumstаnces of point permit sufficient of law reason to case were Spivey such a v. St. to find and reach verdict. Tenn.App. Hospital, S.W.2d Thomas (1948). judging there sufficient material whether evi is reviewing jury, support of the
dence to the verdict required all to look to evidence, court is construe party strongly below; in favor of the successful take most tendency support verdict which has a as true countervailing jury; discard all evidence and to inferences be drawn reasonable and allow all *8 City here. in favor such evidence defendants 341 201 Tenn. 301 Finchum, 604, S.W.2d v. Winchester 189 Sloan, et v. Tenn. 225 (1957); 368, al. S.W.2d Smith Snyder, (1949); & 2 Co. 185 Rose v. 227 S.W.2d 539, City (1947); Tenn. Osborn v. 897 206 S.W.2d 499, 468 (1945); 182
Nashville, Tenn. 185 Sneed 197, S.W.2d (1962); Henderson, v. 211 Tenn. S.W.2d many other cases. determining any whether there is evidence support testimony verdict, we hаve read the inspector
of Mr. plaintiff, Delbert Thomas, which he said that duties visits his included to various projects (of Kroger) make visual observations as accomplished what been had also determine being performed whether the work was in accordance requirements. with contractual Thomas said also Mr. that he contact with most had on the sub-contractors particular during job project. course All parties agreed in, that he was warehouse at the time of the fire. Company,
Mr. & Bouchard, of Bouchard Sons said that inspector job. Mr. a Thomas was more than mere on the expediting He testified Thomas was work and dictating how it done. said that Mr. was to be He also Thomas had called him on numerous occasions and asked job go him to come certain over matters details with reference to construction the addition to the warehouse. superintendent Griem, Mr. Hudson, said that primarily operation
Thomas the boss and that authority got information and Mr. he orders, his Thomas. progress
Hudson testified that the schedule was made by Kroger Company up and that Mr. Thomas would tell job. to start recalled that them when each on the He morning Thomas out in Mr. the ware- fire placement expediting of a Thomas house drain. also *9 according testimony, told Hudson, to move certain his equipment provide space storage in- for the the exploded. sulation materials, which set later was fire and Raymond insula- Welch, stated that when the Griem, approached him tion arrived he Mr. Thomas ar- to have range space insulating for material to stored. the be complete
Mr. Griem was in charge testified that shipping of all for schedules and had set the date the shipping sup- material, the insulation which was posed began to have 24, arrived until March hut 1958, February arrive some unex- on 1958 for reason plained in record. the testimony reading think the
We Mr. that performed supervisor, Delbert the duties of a or Thomas expediter, running part in took active job. suppots the also The evidence the conclusion reached jury Kroger Company, acting through the the supervisor, expediter, Mr. Thomas overseer of job, proximately contributorily negligent, was there recovery. by barring a
Thе record shows amount of conflict in considerable testimony concerning but Thomas, duties of Mr. feel Ave there is substantial that Mr. Thomas evidence up supervisor work, of the set was active a time progress work, schedule for the ordered materials, question, ordered the insulation in which knew or he Despite highly have this, should known flammable. he ordered said insulation stacked in ware- being house construction work was as a and, where done job present matter of in the warehouse fact, on time fire. at had no doubt that Mr. Thomas concluded
charge of of Giem the construction duties under his control Bouchard were carried out direction. smoking” question or not “no whether *10 placed upon
signs
was
had
a
which
been
the material
warning
sufficient
to
so
to
to Bouchard and
Giem
contributorily neg
being
relieve
considered
question
ligent
jury
course,
was a
fact
the
and,
against Kroger.
jury
question
the
determined
storage
that
of the insulation
contends
the
proxi-
not a
material
a mere condition
direct
support
fire. In
contention the
cate
of this
cause
University
South,
v.
In v. the defend Gulf although negligent liability was absolved of because, ant company spilling gasoline, have the could reason lighted any ably anticipated would throw a match that one employees. gasoline during absence of into the the Gulf highly present material In case we have flammable by Kroger evi where the in the immediate area stоred requiring work, construction shows that use dence going welding cutting on and where torches, anticipated reasonably should been have and have could might ignite operation this material. The that such so found. Wagoner, supra, Company we v. held
In Ford Motor liability last conscious be fastened on the that should agency might which or should the mischief. have averted say intervening went on act of we to that However, independent agency an conscions wonld not relieve wrongdoer appeared negligent that, unless it inter- vening act of commission or could not have omission reasonably anticipated. been "Wethink act of commis- present in the sion could have been and should have case anticipated. been University supra, v. Ward South,
Court said distinct where two unrelated causes, operation, injury, being contribute one them furnishing a direct and the other the condition cause injury possible, which was made the former alone is responsible storage for the result. But, we think presence of the insulation of construction required carry work, which the defendants were on, operation” cannot be said be “unrelated in so as *11 merely make the act a condition not a and direct and proximate very purpose matter of fact, cause. aAs the storing provide of the of the material was to for its ready when needed well as to use as accommodate space in in use of the warehouse. only
It is well settled that where reasonable minds may proven draw but one conclusion from that facts, only question then then the of determination of the proximate cause is for the Illinois R. court. Central Co. (1938). 173 118 602, v. Tenn. 213 Nichols, S.W.2d cause Proximate need be the last not act, injury damage, one nearest or the sole cause. procuring cause means which Proximate is the efficient cause аnd indicates accident, in nearness Grigsby & causal Co. v. Bratton, relation. 128 597, Tenn. (1914). 804 163 S.W.
472 putting of think flammable
We place work in known that construction was where type procur going a on constituted involved ing proper efficientcause which a under could, charge proximate. from deem be court, reading record that the from
We are convinced judgment affirming Appeals was correct Court finding for the on the trial defendants court negligence. common law count remaining question is is liable then whether Griem indemnify Kroger by agreement as reason his set quoted in Article above. forth 30 of the contract agree Appeals we said, The Court to its nearly that it is a universal there rule that correctness, recovery negli there can be no where concurrent gence indemnitee indemnitor and unless in both provides demnity for indemnification such contract unequivocal terms;” "clear and case expressing will be read such intent. words pp. Indemnity 580-581; 12, sec. 27 Am.Jur. Indem C.J.S. pp. pp. nity, 464-465; 175 A.L.R. 15, 19, 34-37. sec. sec. only case from this State which this rule, discusses we been or which have been able which has cited find, Buckeye Oil v. Louisville & Nashville R. Cotton Co. is Cir.). (6th is case it said: Co., F.2d ‘ ‘ policy public which no forbade There was rule contracting company the oil with com- railroad against damages indemnity any pany which the *12 pay might required to be result railroad employees operating ordinary negligence its en- * * gines tracks. It is said, cars on these however, and rightly will not so construed, a contract be so, that
473 clearly unless it was intended to This, have effect. mean does not course, intention must he expressed expressed, in terms, but if not that, so ’’ clearly appear language must otherwise used. applied
When this rule is
30 we cannot
Article
any
express
implied,
indemnify against
intent,
see
Kroger’s proximate
negligence.
contributory
indemnitee
reaching
this conclusion we
considered
have
by Kroger:
cited
cases
Southern Natural Gas
v.
Co.
(5 C.A.1962);
Wilson,
additional is not under insureds and has not been us in we considered view that of the determinative issues in take this case. consisting
The record than more case, pages, extremely carefully has been able reviewed, great interest, with exhaustive briefs have been read firmly from all of which are convinced of the correct- we ness of action of the lower courts. judgment Appeals affirmed. Court is Dyer
BurNett, Justice, Felts, Chief Holmes. concur.
Justices,
On to Petition Rehear Mr. Justice White.
(cid:127) petition being consider the as a restate- We rehear arguments support excellent briefs and ment thereof heretofore filed counsel. opinion
We have our authorities cited reviewed on for forth therein. relied our conclusions set thorough of this mat- After and earnest consideration petition considering ter for the third once when time, opinion, secondly preparing our when certiorari, firmly finally, petition to now on are con- rehear, we opinion originally of our the correctness vinced repeat purpose prepared no and it would useful serve support opinion petition given reasons in this on rehear. petition is Therefore, denied.