                                      No. 12501

      I N THE SUPREME COURT O THE STATE OF M N A A
                             F              OTN

                                          1973



BOYCE R. BALLARD,

                              P l a i n t i f f and A p p e l l a n t ,

          -vs   -
VOLLSTEDT KERR LUMBER COMPANY, e t a l . ,

                              Defendants and Respondents.



Appeal from:          D i s t r i c t Court of t h e F o u r t e e n t h J u d i c i a l D i s t r i c t ,
                      Honorable Nat A l l e n , Judge p r e s i d i n g .

Counsel o f Record:

    For Appellant :

                L a r s e n and G l i k o , G r e a t F a l l s , Montana
                David V. G l i k o a r g u e d , and D i r k H. Larsen a p p e a r e d ,
                 G r e a t F a l l s , Montana

    F o r Respondents:

                A l e x a n d e r , Kuenning and Miller, G r e a t F a l l s , Montana
                N e i l E. Ugrin a r g u e d , G r e a t F a l l s , Montana



                                                    Submitted:            September 1 4 , 1973

                                                      Decided :
                                                                     DEC 1 8 1&
Filed :   D ~1
             C        1
                      m
M r . J u s t i c e John Conway H a r r i s o n d e l i v e r e d t h e Opinion of t h e
Court.
           T h i s i s an a p p e a l from a summary judgment f o r d e f e n d a n t s
e n t e r e d i n t h e d i s t r i c t c o u r t of t h e f o u r t e e n t h j u d i c i a l d i s t r i c t ,
Meagher County.              P l a i n t i f f Boyce R , B a l l a r d brought t h e a c t i o n t o
r e c o v e r damages f o r p e r s o n a l i n j u r i e s r e c e i v e d a s a r e s u l t of
a l l e g e d n e g l i g e n c e of d e f e n d a n t s V o l l s t e d t Kerr Lumber Company
and Yamhill Lumber Co.
           Defendants o p e r a t e d a saw m i l l a t White Sulphur S p r i n g s ,
Montana.         I n 1968 p l a i n t i f f e n t e r e d i n t o a c o n t r a c t w i t h d e f e n d a n t s
t o h a u l l o g s t o t h e White Sulphur S p r i n g s m i l l .                I n t h e logging
c o n t r a c t , s e v e r a l paragraphs a r e provided p r o t e c t i n g t h e l o g g i n g
o p e r a t i o n s i n c l u d i n g f i r e l o s s e s ; and, paragraph 1 s p e c i f i c a l l y
                                                                            1
p r o v i d e s f o r " l i a b i l i t y i n s u r a n c e " w i t h s p e c i f i e d l i m i t s t o be
c a r r i e d by t h e l o g g e r , and p r o v i d e s i n p a r t :
           "It i s hereby understood and agreed t h a t t h e
           Logger s h a l l a t a l l times hold t h e V o l l s t e d t Kerr
           Lumber Co., V.K.V. Lumber Co. and t h e Yamhill
           Lumber Co. h a r m l e s s , f r e e and c l e a r from any c l a i m s
           o r r e s p o n s i b i l i t i e s r e g a r d i n g any employee o f t h e
           Logger from Bodily I n j u r y a n d / o r d e a t h and damage
           t o property.          * * *"
            Paragraph 13 o f t h e c o n t r a c t r e a d s :
           " ~ i e n sand Claims. Logger e x p r e s s l y a r e e s t o
           indemnify and save Company and Company7 s p r o p e r t y
           harmless of and from any and a l l d e b t s , dues,
           c l a i m s , demands, l i e n s , c h a r g e s o r damages a r i s i n g
           o u t of o r connected w i t h l o g g e r ' s o p e r a t i o n s under
           t h i s c o n t r a c t which may be a s s e r t e d by any p e r s o n ,
           a s s o c i a t i o n , c o r p o r a t i o n , f e d e r a l government o r
           any agency t h e r e o f . I'
            P l a i n t i f f alleged:        t h a t a f t e r unloading a l o a d of l o g s
he used an e l e c t r i c h o i s t t o l i f t t h e unloaded t r a i l e r on t o h i s
t r u c k , p r i o r t o h i s r e t u r n t o t h e timber f o r a n o t h e r l o a d of l o g s ;
t h a t t h e h o i s t f a i l e d t o s t o p c a u s i n g t h e t r a i l e r bunk t o f a l l
from t h e t r a i l e r s t r i k i n g him and c a u s i n g him s e r i o u s , p a i n f u l
and permanent i n j u r i e s ; t h a t t h e e l e c t r i c h o i s t was owned, con-
t r o l l e d and s e r v i c e d by d e f e n d a n t s ; and i t was used by p l a i n t i f f
a t defendants' request.                  P l a i n t i f f was an independent c o n t r a c t o r
under t h e p r o v i s i o n s of t h e logging c o n t r a c t .
       We note here, in considering the district court's summary
judgment, that plaintiff's allegation of a previous malfunction
of the hoist is inserted for the first time as an issue on appeal.
No such allegation appears in plaintiff's complaint.
       Plaintiff received no workmen's compensation because he was
considered an "independent contractor" and not an "employee1'or
11
 workman" entitled to benefits under Montana's workmen's Compen-
sation Act.
       The sole issue on appeal is whether the indemnity clause,
heretofore quoted, provides indemnification to the logger as against
the company?
       Plaintiff argues that under the provisions of the contract
defendants seek to limit liability for their own negligent acts.
He contends that under recent decisions of this Court defendants
cannot do so and cites in support: Western Construction Co. v.
~osby'sInc., 146 Mont. 313, 406 P.2d 165; Lesofski v. Ravalli Co.
Elec. Coop., 151 Mont. 104, 439 P.2d 370.
       Plaintiff, recognizing there is a diversity of opinion on
the issue and his position is a minority position, relies heavily
on the California case of Vinnell Company v. Pacific Electric
Railway Co., 52 C.2d 411, 340 P.2d 604, 607, 608. There, the court
was called upon to consider a contract which purported to indemnify
a party for his own negligent acts.   The language of that contract
was similar to that of the contract involved here.   The court
found the language did not save the indemnitee from liability for
damages resulting from its own negligence, and said:
       "'1n the overwhelming majority of the cases the
       result reached by their interpretational efforts
       can be condensed into the simple rule that where
       the parties fail to refer expressly to negligence
       in their contract such failure evidences the
       parties' intention not to provide for indemnity
       for the indemnitee's negligent act.'


       "[Ilf an indemnitor such as the plaintiff is to be
       made responsible for the negligent acts of an indemnitee
       over whose conduct it has no control, the language im-
       posing such liability should do so expressly and
          unequivocally so that the contracting party is advised
          in definite terms of the liability to which it is ex-
          posed. The indemnification clause in the present
          case, by not expressly stating that the defendant was
          protected against acts of its own negligence, failed
          to meet this requirement. I I
          Vinnell was followed by three cases: Markley v. Beagle,
59 Cal.Rptr. 809, 429 P.2d 129; Goldman v. Ecco-Phoenix Elec.
Corp., 41 Cal.Rptr. 73, 396 P.2d 377; Price v Shell Oil Company,
                                             .
85 Cal.Rptr. 178, 466 P.2d 722.     All three cases limit the strict
construction rule sought by plaintiff to affirmative acts of
negligence.     Here, plaintiff alleged no affirmative act of negli-
gence by defendants, therefore the cases are not applicable. Couple
this with the language quoted heretofore from paragraph 11 of the
contract, and the language is clear and explicit.
          Plaintiff argues that in the recent case of Western
Construction Co. v. ~osby's, Inc., 146 Mont. 313, 406 P.2d 165,
11
     the indemnity agreement specifically and expressly named the
lessor as a party to be indemnified from liability for actions
arising out of the use of the defective equipment; therefore,
the lessor was held to be validly indemnified since the indemnity
agreement complied with the rule that    **   9~   'the law does not
favor one who endeavors to indemnify himself against his own
negligence, and a provision in an instrument to do so will be
strictly construed against the party relying upon it."'        Plaintiff
in basing his arguemnt on the above language of Western Construc-
tion Co. either misreads or misunderstands that decision.        A
careful reading of the case shows that the quoted language is
from a California case (City of Oakland v. Oakland Unified School
Dist. of Alameda County, 141 Cal.App.2d 733, 297 P.2d 752) and
the holding in that case was expressly rejected by this Court in
Western Construction Co.
           Plaintiff cannot successfully compare the fact situation here
with Western Construction Co.     There the indemnity clause speci-
fically refers to an action arising out of the use of defective
equipment, and the only contract between the indemnitee and in-
demnitor involved t h e u s e of a s i n g l e p i e c e of equipment, a
h o i s t i n g tower.     I n t h e i n s t a n t c a s e , we have a l o g g i n g c o n t r a c t
which i n v o l v e d a complex r e l a t i o n s h i p between t h e l o g g e r and t h e
company g i v i n g r i s e t o an i n d e t e r m i n a b l e number of p o s s i b l e
s i t u a t i o n s which could g i v e r i s e t o p o t e n t i a l c l a i m s , demands
or liability.            The v e r y language of t h e indemnity c l a u s e was
i n t e n d e d t o be broad enough t o p r o t e c t t h e company from a l l of
                                                                                II
them, a s long a s t h e y involved a c t s connected w i t h                    ~ogger's
operations".
          The judgment of t h e d i s t r i c t c o u r t i s a f f i r m e d .




                                                      ,Justice




    Justices.
