                 United States Court of Appeals,

                          Fifth Circuit.

                           No. 92-7797.

                   Drucilla MARTIN, Plaintiff,

                                v.

   SEARS, ROEBUCK & COMPANY, Defendant-Third Party Plaintiff-
Appellee,

                                v.

   Robert SIMS, d/b/a MSA Janitorial & Carpet Cleaning Service,
Third Party Defendant-Appellant.

                          July 5, 1994.

Appeals from the United States District Court for the Southern
District of Mississippi.

Before ALDISERT*, REYNALDO G. GARZA and DUHÉ, Circuit Judges.

     ALDISERT, Circuit Judge:

     This appeal by Robert Sims, doing business as MSA Janitorial

& Carpet Cleaning Service, requires us to decide if the district

court erred in this diversity case tried under Mississippi law by

directing at pre-trial and in its jury instructions that Sims, the

third-party defendant, would be held liable for any damages awarded

Drucilla Martin in her personal injuries action against Sears,

Roebucks & Co, the defendant and third-party plaintiff.   The jury

found for the plaintiff Drucilla Martin and assessed her damages in

the amount of $125,000.     The district court then molded the

verdict, holding Sims liable to Sears for the amount of the

verdict.   Because we believe that the district court erred in


     *
      Circuit Judge of the Third Circuit sitting by designation.

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interpreting an indemnity agreement between Sears and Sims, we will

reverse the judgment and remand for a new trial.

     The district court had jurisdiction under 28 U.S.C. § 1332.

We have jurisdiction in this appeal from a final judgment pursuant

to 28 U.S.C. § 1291.    The appeal was timely filed under Rule 4(a)

of the Federal Rules of Appellate Procedure.

                                    I.

     Drucilla Martin sued Sears for injuries sustained when she

fell after entering the Sears store in Meridian, Mississippi.          At

pre-trial, Ms. Martin and Sears stipulated that she "tripped and

fell on an entrance mat after she entered the southeastern entrance

to the Sears' retail store ..." R. at 331.         In her testimony at

trial, however, Ms. Martin said that she "stumbled on something"

and when she looked back at what caused her fall it "looked like

something up against the wall."          Tr., vol. 2, at 39, 42.     Ms.

Martin also testified that she turned to her right after entering

the store.   Id. at 43.

     Evidence   was    introduced   that    Sims   was   an   independent

contractor assigned janitorial responsibilities at Sears' Meridian

store.   Among Sims' employees working the day Ms. Martin fell were

Peggy Ponjola Reed, DeArthur Washington and David Cook.          Ms. Reed

testified that, on the morning of the accident, she dust mopped the

floor near the southeastern entrance, Mr. Washington mopped it and

Mr. Cook buffed it.     She also testified that she had folded the

entry mat and placed it against the baseboard of the wall to the

right of the store's entrance.      Apparently, Mr. Washington or Mr.


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Cook regularly replaced the floor mat after the area was buffed.

     Notwithstanding this testimony, the jury was not instructed as

to Sims' duty of care nor was it asked to determine if Sims'

employees had been negligent in failing to replace the mat.

     Following the close of evidence, the district court instructed

the jury regarding only the duty of care owed to the plaintiff by

Sears:

     If you find from a preponderance of the evidence in this case
     that the condition and location of the floor mat made Sears'
     premises   unreasonably   unsafe—that   is,    dangerous   for
     customers—and that Sears failed to correct the danger posed by
     the floor mat or to warn the Plaintiff of any dangers
     associated with that floor mat which were not readily
     apparent, then you will find that Sears was negligent.

Tr., vol. 3, at 19.    With regard to Sims, the court told the jury:

     Prior to April 17th, 1990, the Third-Party Defendant, Robert
     Sims, doing business as MSA Janitorial Service, entered into
     a contract with Sears to maintain and clean the Sears store
     premises.

     Under the contract, MSA agreed that in the event that Sears
     was required to pay out money on account of injury to persons
     on Sears' premises arising out of or incidental to services
     undertaken and performed by MSA, including negligent acts or
     omissions by MSA in connection with the performance of that
     contract, then MSA would indemnify or pay to Sears such
     amounts as Sears was so required to pay.

     In other words, the effect of the contract is to shift all
     compensatory elements and damages sustained by the Plaintiff
     from Sears to MSA Janitorial Service.

     Therefore, if you should render a verdict for Plaintiff
     against Sears in this case, based upon your finding that
     Plaintiff has proven each element of her claim against Sears
     as I have described those elements to you, then you must also
     render a verdict in favor of Sears and against MSA in the
     amount of damages you find to have been sustained by the
     Plaintiff.

Id. at 21-22.

     The   court's   instructions   to   the   jury   were   based   on   its

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interpretation of the indemnity agreement between Sears and Sims.

The indemnity agreement provides:

          Contractor agrees and covenants to defend, indemnify and
     to hold harmless Sears, its officers, agents and employees
     from and against any and all claims, actions, liabilities,
     losses and expenses related to any and all losses or damages
     (including, without limiting the foregoing, injury to or death
     of persons and damage to property) allegedly or actually
     suffered by any person or persons and allegedly or actually
     arising out of or incidental to the performance of said
     services by Contractor, including without limiting the
     foregoing, all negligent and intentional acts and omissions of
     Contractor in connection with the performance of services
     under this agreement.

R. at 250.

                               II.

     Sims contends that the district court erred in denying his

motion to dismiss the third party complaint, in denying his motion

for a directed verdict, in instructing the jury that Sims was an

agent of Sears, and in refusing to instruct the jury that Sims

could not be held liable under the indemnity agreement unless it

was proved that Sims had been negligent and that his negligence was

the proximate cause of the injuries to the plaintiff.

     In our view, the court's reversible error is encompassed

within these contentions and stems from its improper interpretation

of the indemnity agreement.   The court was of the view that this

agreement indemnified Sears against its own negligence. This court

reviews matters of contract interpretation de novo. National Union

Fire Ins. Co. v. Care Flight Air Ambulance Serv., Inc., 18 F.3d

323, 324 (5th Cir.1994).

     Contrary to the view of the district court, we hold that Sears

was entitled to indemnification from Sims only in the event that

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the jury found Sims negligent.

                                    III.

      Under Mississippi law, an indemnitee will be indemnified

against its own negligence "when the contract shows by clear and

unequivocal language that this is the intention of the contracting

parties."      Blain   v.   Sam   Finley,    Inc.,   226   So.2d   742,   746

(Miss.1969).    Our task, therefore, is clear cut.         We must examine

the indemnity agreement to determine whether there is clear and

unequivocal language indicating that Sims intended to indemnify

Sears against Sears own negligence.

     The language of the indemnity agreement between Sears and Sims

is plain and its meaning obvious.          Sims agreed to indemnify Sears

only for "negligent and intentional acts and omissions of [Sims]"

and only for acts "arising out of or incidental to the performances

of ... services by [Sims]."       There is not one word in the agreement

stating that Sims would indemnify Sears for Sears' own negligence.

And none can be implied.     Thus, there is a total absence of "clear

and unequivocal language," as required under Mississippi law,

indicating that the indemnitee, Sears, would be indemnified against

its own negligence.     Id. at 746.

      The language in the indemnity agreement between Sears and

Sims is distinguishable from the indemnity agreement in City of

Jackson v. Filtrol Corp., 624 F.2d 1384 (5th Cir.1980).            There, we

held that an indemnification agreement, which provided that the

City of Jackson shall save harmless the indemnitee, Filtrol, from

any damage "arising out of or resulting from or in any manner


                                      5
caused by the location, construction, operation and maintenance and

presence" of a sewer line on Filtrol's property, was broad enough

to protect the indemnitee against the consequences of its own

negligence.     Id. at 1387-88.       Unlike the case presently before us,

in City of Jackson there was no limiting language in the agreement,

no specific reference to the actions of the indemnitor, negligent

or otherwise.

       Accordingly, we conclude that the district court erred at

pre-trial when it declared:

       [I]f I were to conclude that the way I'm disposed to now, and
       as I say, my law clerk is checking it, it could very well be
       that if Sears is negligent, then MSA [Sims] would be liable to
       Sears.

Tr., vol. 1, at 4-5.          This error was compounded and rendered

reversible when, at the close of testimony, the court instructed

the   jury    that   "the   effect    of       the   contract   is   to   shift   all

compensatory elements and damages sustained by the Plaintiff from

Sears to MSA Janitorial Service" and that if the "Plaintiff has

proven each element of her claim against Sears ... then you must [

] render a verdict in favor of Sears and against MSA ..." Tr., vol.

3, at 22.

       We read the agreement as indemnifying Sears only if the

injuries to plaintiff were caused by the negligence of Sims. Proof

of    Sims'   negligence,    not     Sears'      negligence,    was   a   condition

precedent to triggering indemnification.                 At oral argument before

us, counsel for Sears agreed with this interpretation:

       COURT: Do you concede that in order for the contractor to be
       liable under the indemnity agreement there has to be a
       condition precedent, as your friend said, of proving

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      negligence on the part of Sims?

      COUNSEL:   Yes, sir.

      Unfortunately, counsel for Sears was under the impression that

the issue of Sims' negligence was in fact put to the jury.           As set

forth above, however, this was not the case.           Although the court

did   charge   that   under   the   contract   Sims   agreed   to   pay   for

"negligent acts or omissions by [Sims] in connection with the

performance of the contract," it also instructed the jury that if

the plaintiff proved Sears to be negligent, then Sears was entitled

to indemnity from Sims.        It was here that the district court

committed reversible error.

                                     IV.

      Accordingly, the judgment of the district court is REVERSED

and the proceedings REMANDED for a new trial.




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