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District Court of Appeal, Second District, Division 1, California.

HARVEY MACHINE CO., Inc., Pacific Indemnity Company, and Sam Blau, Plaintiffs and Respondents, v. J. O. ROSS ENGINEERING CORPORATION, a corporation, Defendant and Appellant. *

Civ. 23842.

Decided: December 30, 1959

Schell, Delamer & Loring, Los Angeles, for appellant. Ball, Hunt & Hart, Clark Heggeness, Long Beach, for respondents.

This is an appeal from a declaratory judgment wherein the court declared that the appellant-indemnitor is obligated to indemnify the respondents-indemnitees against respondents' own negligence.

The cause was submitted to the trial court for determination upon a set of stipulated facts. No testimony was taken.

A reśume ́of the facts is as follows:

Respondent, Pacific Indemnity Company, is the insurance carrier for respondent, Harvey Machine Company (hereinafter referred to as ‘Harvey’). Under the terms of a contract of insurance, Pacific Indemnity Company agreed to defend actions and to insure Harvey against ‘liability imposed by law.’

In order to have an aluminum remelt plant constructed on a parcel of land it owned near Torrance, Harvey awarded construction contracts to various contractors, among which is the appellant. On September 6, 1955, Harvey and Ross executed an agreement in writing whereby Ross agreed to install certain equipment on the premises of Harvey. The agreement was prepared by Harvey. In it, appellant is referred to as ‘Seller’ and Harvey as ‘Buyer.’ The agreement provided in part as follows:

‘Accident Prevention:

‘(a) In order to provide safety controls for portection to the life and health of employees and other persons; for prevention of damage or property, materials, supplies and equipment; and for avoidance of work interruptions in the performance of this contract; the Seller shall comply with all pertinent provisions and Safety Requirements of Federal and State Laws building codes and regulations in effect during the course of the work, and will also take or cause to be taken such additional measures as to the Buyer may determine to be reasonably necessary for the purpose.

‘(b) Seller agrees to indemnify and hold harmless Harvey Machine Co., Inc., and its officers and employees, against liability, including all costs and expenses, for bodily of personal injuries including death at any time resulting therefrom, sustained by any person or persons including employees of Seller, and arising from the use of the premises, facilities or services of Harvey Machine Co., Inc. its officers or employees.

‘(c) Compliance with the provisions of this Article by Subcontractors will be the responsibility of the Seller.’

Ross undertook performance of the Agreement. On December 30, 1955, one Paul Marasse, an emploee of Ross was injured on the premises owned by Harvey by falling into an excavation; the excavation had been constructed and was under construction by the Vinnell Company, Inc., which was performing work on the premises of Harvey under a construction agreement between Harvey and Vinnell. Ross had no contract with Vinnell nor with the other two contractors performing services for Harvey.

At the time of his injury, Marasse was engaged in the course of his employment with Ross and was performing work for Ross which was required by the contract between Harvey and Ross.

On March 23, 1956, Marasse filed an action in the Superior Court in Los Angeles, case number 657,925 against Harvey, et al., for damages for the personal injuries sustained as a result of his fall.

After the action against Harvey was filed, Harvey made a demand upon appellant to defend the action under the indemnity provisions of the aforementioned contract. The appellant refused and thereafter Harvey and Pacific Indemnity Company brought this action for declaratory relief requesting a declaration that appellants were required to indemnify and hold them harmless from Marasse's claim.

The trial judge ordered in part as follows:

‘1. Defendant to pay any and all costs and expenses of plaintiff Pacific Indemnity Company in the defense of Harvey Machine Co., Inc. and Sam Blau in the action entitled Paul Marasse, plaintiff, vs. Vinnell Company, Inc., et al, number 657925 files of the Superior Court of the State of California, in and for the County of Los Angeles, and any judgment that may be rendered against the said Harvey Machine Co., Inc. and Sam Blau.’

The question presented is precisely the same as presented in the companion case of Harvey Machine Co., Inc. and Pacific Indemnity Co. v. Hatzel & Buehler, Inc., and Charles A. Langlais Co., Cal.App., 1 Cal.Rptr. 866:

‘* * * Whether such an indemnity clause operates to exclupate the defendant (indemnitee) from the consequences of its own negligence where the clause does not expressly state that damage caused by the defendant's negligence is intended to be included in the coverage of the clause.’ (Emphasis added.)

The conclusion reached and the reasons given therefor in the Harvey Machine, et al. v. Hatzel & Buehler et al., supra, case are equally applicable to the case at bar.

For the reasons therein stated, the judgment is reversed.

FOURT, Justice.

WOOD, P. J., and LILLIE, J., concur.

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