author: ELMO B. HUNTER, Special Judge.

text:
    STATE of Missouri, Respondent, v. James Robert CAFFEY, Appellant.
    No. 49364.
    Supreme Court of Missouri, Division No. 1.
    Feb. 11, 1963.
    Motion for Rehearing and for Transfer to Court En Banc Denied March 11, 1963.

      James Robert Caffey pro se.
    Thomas F. Eagleton, Atty. Gen., George D. Chopin, Sp. Asst. Atty. Gen., Jefferson City, for respondent.
   ELMO B. HUNTER, Special Judge.

James Robert Caffey has appealed from a judgment, entered pursuant to jury verdict, imposing a sentence of twenty years’ confinement for the offense of having under his control a narcotic drug, to wit, cocaine hydrochloride, Section 195.020, RSMo 1959, V.A.M.S.

At the trial in the Circuit Court of Greene County, Missouri, the defendant was represented by a licensed and practicing attorney with law offices in Springfield, Missouri. The defendant did not offer any evidence.

Mrs. Caffey, the defendant’s mother, who lived in Springfield, Missouri, testified on behalf of the State that sometime in November, 1960, her son telephoned her from Portland, Oregon, and requested her to rent for him a safe deposit box in a bank, directing her to rent the box in the name of Dr. James Robert Caffey. On November 14, 1960, she rented the safe deposit box for him at Union National Bank in Springfield, Missouri, and listed his name as Dr. James R. Caffey. When asked about her son’s use of the title “doctor” defendant’s mother stated that when he was about 19 years’ old and while working as an orderly or male nurse in a hospital, “they started calling him ‘doc.’ And then he had a church (The Disciples of Truth) in, oh, Tulsa, Oklahoma, and he got the name of ‘doctor’ there, and, of course, everybody called him ‘doc’ and the name has just stuck.” She inferred his title was just a nickname.

It was the bank’s practice to require a renter to sign a rental contract. However, Mrs. Caffey did not do so, advising that her son would sign it later. She stated she put nothing in the box. When defendant arrived from Portland, she gave him the two duplicate keys which she had received from the bank. She did not return to the bank thereafter, nor did she ever again have the keys.

The written rental agreement which the bank used restricted access to the safe deposit box to the renter and his named deputy if one be named in the rental agreement. It is undisputed that the only way a safe deposit box can be opened, other than by force, is by the combined use of the renter’s key and a “guard” key retained by the bank.

A bank attendant testified that on December 5, 1960, defendant came to the bank and signed the rental card for the safe deposit box. He had at least one of the keys in his possession and opened the box. Acr cording to the bank records, no one else entered or opened the box until November 28, 1961. On that date the Sheriff of Greene County, acting on information received from one or more persons to whom defendant had confided he was keeping narcotics there, obtained a search warrant and pursuant to it forcibly opened the safe deposit box, finding in it a sealed bottle containing one ounce of cocaine hydrochloride. The parties stipulated that this is a narcotic substance named as a narcotic drug in Section 195.010 RSMo 1959, V.A.M.S., and succeeding subsections.

According to the evidence, defendant had stated the bottle containing the narcotic was his property and had admitted he had put it in the safe deposit box quite a while prior to the time it was discovered, and that he had obtained it from a doctor in Illinois.

The defendant’s motion for a judgment of acquittal filed at the close of all the evidence was overruled, and the cause was submitted to the jury. After the unfavorable jury verdict, defendant through his attorney filed a timely motion for new trial alleging seven charges of error. This motion was duly heard, overruled, the defendant given allocution, and judgment entered accordingly.

On this appeal defendant, who was allowed to proceed as a poor person, appeared pro se, orally arguing his cause and submitting a main brief, and a reply brief to the State’s brief. He advised the court that although he had counsel on this appeal there was some disagreement between them and that he chose to proceed pro se.

It is the established rule that the appellate court and the parties are bound by the record presented for review, and that assignments or contentions of error which are based on matters, which if they occurred, are not shown by the record will not be considered or determined on appeal. State v. Burnett, En Banc, 365 Mo. 1060, 293 S.W.2d 335, 339, cert. den. 352 U.S. 976, 77 S.Ct. 367, 1 L.Ed.2d 326. Defendant’s first two contentions of error in his brief are that the trial court failed to make an effective assignment of counsel; that the court assigned counsel deliberately and deceitfully failed to properly advise defendant of his rights, privileges, immunities and in effect misadvised him in favor of the interests of the State. These two contentions are not mentioned in the motion for new trial and are presented for the first time on appeal.

Generally, assignments of error not involving the sufficiency of the information or indictment, verdict, judgment and sentence are not available on appeal unless they have been properly presented to the trial court. S.Ct. Rule 28.02, V.A.M.R.; State v. Smith, Mo.App., 310 S.W.2d 845, cert. den. 358 U.S. 910, 79 S.Ct. 237, 3 L.Ed.2d 231; State v. Brewer, Mo.Sup., 338 S.W.2d 863.

We recognize that a court appointed attorney for personal reasons would be reluctant to charge himself with being incompetent or intentionally remiss in his duties, if such be the case, and that a defendant therefore would be deprived of any opportunity to present such contentions on appeal unless the appellate court would review the matter on the record before it under S.Ct. Rule 27.20(c) providing that plain errors affecting substantial rights may be considered on appeal, in the discretion of the court, though not raised in the trial court or preserved for review, or defectively raised or preserved, when the court deems that manifest injustice or miscarriage of justice has resulted therefrom.

In accordance with S.Ct. Rule 27.20(c), we have reviewed the record and have not found in it anything that supports defendant’s contentions concerning his counsel. These contentions are not self proving, and absent their being substantiated by the record, cannot and do not demonstrate injustice or miscarriage of justice. The bare fact that the jury imposed the maximum sentence under the law on defendant in and of itself does not demonstrate that the trial court failed to appoint reasonably competent counsel or that such counsel failed to conduct himself in a proper manner in his representation of defendant. Cf. State v. Johnstone, Mo.Sup., 335 S.W.2d 199, 206 (16), cert. den. 364 U.S. 842, 81 S.Ct. 81, 5 L.Ed.2d 66; State v. Whitaker, Mo.Sup., 312 S.W.2d 34.

In his motion for new trial and in his appellate brief defendant charges that the verdict, after the jury had deliberated for less than thirty minutes, and in view of the fact that the evidence failed to disclose any aggravating factors in the control of a narcotic, is so excessive as to shock the conscience and is the result of bias, prejudice and passion against the defendant on the part of the jurors.

In a criminal prosecution not involving the habitual criminal act it is primarily the jury’s function to assess punishment subject to the power in the trial court to reduce the extent or duration of the punishment assessed by the jury, if in the opinion of the trial court the conviction is proper but the punishment assessed is greater than, under the circumstances of the case, ought to be inflicted. S.Ct. Rule 27.03; State v. Sheard, Mo.Sup., 276 S.W.2d 191. On appeal, the appellate court will not interfere with the trial court’s exercise of its discretionary power in refusing to reduce the sentence imposed by the jury to one of a lesser duration in the absence of a showing that passion and prejudice so clearly appears from the record that the appellate court can confidently say the trial court abused its discretion by declining to reduce the punishment. State v. Laster, En Banc, 365 Mo. 1076, 293 S.W.2d 300.

According to the transcript the jury retired to consider its verdict at 3:40 p. m. and thirty-five minutes later returned with it. The evidence presented in the case was brief, uncomplicated and not contradicted. The fact that it took the jury no more than 35 minutes to return with its verdict is not in and of itself a showing of bias, prejudice or passion on the part of the jury. See, Section 546.240, RSMo 1959, V.A.M.S.; State v. Payne, Mo.Sup., 342 S.W. 2d 950. As stated in State v. Richmond, 321 Mo. 662, 12 S.W.2d 34, 36, “The Legislature in its wisdom has seen fit in defining the powers of a jury to declare that ‘when the argument is concluded, the jury may either decide in court or retire for deliberation.’ Section 4027, R.S. 1919. * * * The time they may devote to such deliberation if the same is deemed necessary, is left wholly to their judgment. Something more must appear therefore to warrant an interference with a verdict than an alleged brevity of their deliberations. To hold otherwise would be to interfere with their consideration of the facts, in which they are as independent of the court as the judge is of the jury in determining the law.”

In numerous cases we have held that punishment will not he deemed excessive or the result of passion and prejudice merely because it is the maximum fixed by statute. State v. Mahan, Mo.Sup., 226 S.W.2d 593; State v. McHarness, Mo.Sup., 255 S.W.2d 826; State v. Burton, 355 Mo. 792, 198 S.W.2d 19. In his motion for new trial defendant does not point out any specific circumstances of improper prejudicial actions of witness, court or prosecution in the trial of the case that would cause or explain the claimed excessiveness of the verdict. Nor have we found any in our examination of the record. We are constrained to rule that the contention of error under discussion is without merit.

The defendant’s next assignment contained both in his motion for new trial and in his brief is that the court erred in giving Instruction No. 1, over the objection of defendant, for the reason that it required a finding of guilty if defendant on November 28, 1961, had control of the narcotic drug, whereas the evidence wholly fails to show that on or about such date defendant had the keys to the safety box containing the narcotic drug or any other means of access to or control over such drug. The evidence showed defendant’s mother rented the safety box in his name and at his request. When her son arrived from Oregon she gave him both keys and she has never had them since. On December 5, 1960, defendant signed a contract as renter of the box and used his key to enter it. The bank could not open the safe box with its “guard” key. No one other than defendant entered the box, and there is no evidence defendant did not continue to possess the keys. He placed the cocaine in the safe deposit box “quite awhile” prior to the sheriff entering the box, and it “had been there a long time.” This evidence and its reasonable inferences are sufficient to support a jury finding that the defendant on November 28, 1961, did have under his control the described narcotic drug. The fact that the bank had a “guard” key to the box and that both the renter’s key and the guard key were necessary to open the box does not change the fact that defendant as the renter of the box and as possessor of the renter’s key is the one who may be found to have control over his narcotic drug that he placed and stored therein.

Also before us is defendant’s charge that Instruction No. 1-A, the burden of proof instruction, is confusing, contradictory and erroneous because of the inclusion of the words we have italicized below:

“The law presumes the defendant to be innocent, and this presumption continues until it has been overcome by evidence which establishes his guilt to your satisfaction and beyond a reasonable doubt; and the burden of proving his guilt rests with the State.

“If, however, this presumption has been overcome by the evidence and the guilt of the defendant established to a moral certainty and beyond a reasonable doubt, your duty is to convict.

“If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; * ’ * Instruction No. 1-A also covers the subject that the information was but the formal charge and was not to be taken as evidence of guilt.

As early as 1909 this court has provided an approved burden of proof instruction and has recommended its use. In State v. Nerzinger, 220 Mo. 36, 119 S.W. 379, the court set out the instruction as follows : “ ‘If, upon consideration of all the evidence, you have a reasonable doubt of the defendant’s guilt, you should acquit; but a doubt, to authorize an acquittal on that ground, ought to be a substantial doubt touching the defendant’s guilt, and not a mere possibility of his innocence.’ ” The court then commented, “It has often been remarked by this court that this last instruction embodied the true doctrine as to reasonable doubt in criminal causes. As said in State v. Leeper, 78 Mo. 470, its use in this form is almost canonized, and this court has often admonished the circuit courts that it is better to adhere to instructions that have received the approval of this court and not to attempt definitions which add nothing to the meaning of well-understood terms.” This approved instruction together with the same admonition to use it was set out in State v. Howard, 324 Mo. 145, 23 S.W.2d 11, 15. We repeat that admonition. See, State v. Cheatham, Mo.Sup., 340 S.W.2d 16, 20, 53 Am.Jur. Sec. 752, p. 562.

However, as in both the Nerzinger case and the Howard case, supra, we are unwilling to rule that the instruction before us in its complete context is erroneous. The phrase “to your satisfaction” is used in the conjunctive with the phrase “beyond a reasonable doubt” as is also the phrase “to a moral certainty.” As so used and joined they do not whittle away or minimize the defendant’s rights and the presumption of innocence to which he is entitled. See, State v. Cheatham, supra. Nor as used in the conjunctive do they to any appreciable degree make the instruction confusing or contradictory. We rule the assignment against defendant.

In his brief and for the first time defendant asserts Sections 195.020, 195.050, 195.180 and 195.200 RSMo 1959, V.A.M.S., as applied to the facts established by the State are repugnant to and in violation of defendant’s “natural rights” and to certain constitutional provisions. This assertion in any form was never made to or presented to the trial court, and in accordance with the established rule requiring such a contention to be timely presented to the trial court to be preserved for appellate review, will not be considered on appeal.

Defendant’s contentions of error V, VI and VII concerning instructions and defendant’s motion for a directed verdict of acquittal present matters not set out in the motion for new trial as required by S.Ct. Rule 27.20 and are not preserved for appellate review.

At defendant’s request the trial court gave Instruction No. 3 defining the word “control” and requiring that the jury find defendant had such control of the narcotic drug on or about November 28, 1961, or it must acquit him. In essence defendant contends the jury must have disregarded Instruction No. 3 and based its verdict on passion and prejudice. The evidence and its reasonable inferences before the jury on the subject of the control of the drug by defendant was sufficient to support a finding of the mentioned control as defined in Instruction No. 3; hence, there is no merit in defendant’s claim that the jury disregarded Instruction No. 3 and reached its verdict on passion and prejudice.

The defendant also contends generally that the information is defective for failure to allege the essential elements of any crime. We have examined the information which is drawn under Section 195.020 RSMo 1959, V.A.M.S., and find no merit in defendant’s contention.

Several contentions of error set out in the motion for new trial are not contained in defendant’s brief. It is the rule that if the appellant files a brief in the appellate court, assignments of error in the motion for a new trial not presented thereby shall be deemed waived or abandoned. S.Ct. Rule 28.02.

In summary, we have considered all of the points in defendant’s brief that are preserved for appellate review and have found them to be without merit. We have found that the information is in proper form and charges the crime for which defendant was convicted; and although there is no challenge in the brief as to other matters for which no assignment of error in a motion for new trial is necessary for appellate review we have reviewed them. The defendant was properly arraigned. The verdict is in proper form. The sentence imposed is within the prescribed statutory limits; allocution was granted, and the judgment is in due form and responsive to the verdict.

Accordingly, the judgment is affirmed.

All concur.


source: Caselaw Access Project

author: BOHLING, Commissioner.

license: Public Domain

text:
    STATE of Missouri, Respondent, v. Earl Arthur LOWE, Appellant.
    No. 49354.
    Supreme Court of Missouri, Division No. 2.
    Feb. 11, 1963.
    Motions for Special Order Pursuant to Rule 28.07 and for Rehearing Denied March 11, 1963.
    Richard S. Sundeen, Parkville, for appellant.
    Thomas F. Eagleton, Atty. Gen., Paul A. Slicer, Jr., Asst. Atty. Gen., Jefferson City, for respondent.
   BOHLING, Commissioner.

Earl Arthur Lowe was found guilty of robbery in the first degree (§ 560.120), and was sentenced to ten years’ imprisonment (§ 560.135). (Statutory references are to RSMo 1959 and V.A.M.S.)

The jury returned its verdict on December 12, 1961. On January 10, 1962, defendant’s motion for new trial was overruled; and, thereafter on said day, allocution was granted defendant, and judgment was entered in accordance with the verdict of the jury.

The judgment in this case became final for the purposes of appeal on its entry, January 10, 1962. State v. Morrow, Mo., 316 S.W.2d 527 [1]. Defendant’s notice of appeal was filed on February 9, 1962, thirty days after the judgment became final. Supreme Court Rule 28.03, V.A.M.R., provides that an appeal in a criminal case “shall be taken by filing a notice of appeal * * * within the same time after final judgment as provided for civil cases.” Notices of appeal in civil cases are required to be “filed not later than ten days after the judgment * * * appealed from becomes final.” Supreme Court Rule 82.04; § 512.050. Franklin v. Franklin, Mo.App., 344 S.W.2d 282 [2, 3]. Supreme Court Rule 31.02, while authorizing the enlargement of the time for certain acts by the courts, provides “but the court may not enlarge the period * * * for taking an appeal as provided in these Rules.” There is nothing in this record to indicate that this is an appeal by special order under Criminal Procedure Rule 28.07. We are governed by the approved transcript filed in this court. It was this defendant’s duty to see to it that a proper transcript was prepared, transmitted to and filed here. Rule 28.08; § 547.120; State v. Kelsay, Mo., 18 S.W.2d 491 [4, 5]; State v. Steenbergen, 334 Mo. 880, 68 S.W.2d 684 [1] ; State v. Hite, Mo., 298 S.W.2d 411 [5].

The notice of this appeal should have been filed within ten days after the judgment became final; that is, after its entry. It was not timely filed, having been filed thirty days thereafter. State v. Robbins, Mo., 269 S.W.2d 27, stating 1. c. 29, “The timely filing of a notice of appeal is ‘the vital step’ for perfecting an appeal and is necessary to invoke appellate jurisdiction”; State v. Morrow, Mo., 316 S.W. 2d 527 [3]; State v. Henderson, Mo., 344 S.W.2d 96 [1, 2]; State v. Crocker, Mo., 335 S.W.2d 32 [3]. Defendant’s notice of appeal did not vest this court with appellate jurisdiction and the appeal must be dismissed.

The appeal is dismissed.

BARRETT and STOCKARD, CC., concur.

PER CURIAM.

The foregoing opinion by BOHLING, C., is adopted as the opinion of the court.

All of the Judges concur.


author: HOLLINGSWORTH, Judge.

text:
    Charles H. BARNARD et al., Respondents, v. Loyd MURPHY, Doing Business as Allied Refrigeration, Appellant. Gordon NEIL et al., Respondents, v. Loyd MURPHY, Doing Business as Allied Refrigeration, Appellant.
    Supreme Court of Missouri, Division No. 1.
    March 11, 1963.

      Edwin Earnshaw, Kirchner, Vanice & Earnshaw, Kansas City, for appellant.
    Harold T. Van Dyke, John R. Cleary, Kansas City, Linde, Thomson, Van Dyke, Fairchild & Langworthy, Kansas City, of counsel, for Charles H. Barnard and others.
    Foust & Lyons, Stephenson, Henry & Schollars, Kansas City, for respondents.
   HOLLINGSWORTH, Judge.

Each of the several plaintiffs in the above cases seeks damages for (a) the value of food which admittedly spoiled by reason of inadequate refrigeration while stored in a locker or lockers in a locker plant owned and operated by defendant and (b) the amounts paid for the portion of the rental period during which such food was stored in said plant. In the first case, hereinafter referred to as the “Barnard case”, six of defendant’s customers had joined in one action under S.Ct. Rule 52.05, V.A.M.R., each seeking to recover solely in his own behalf. In the second case, hereinafter referred to as the “Neil case”, three of defendant’s customers instituted a class action under the provisions of S.Ct. Rule 52.08 in behalf of themselves and all “renters or lessees of locker space [in defendant’s locker plant], who are so numerous as to make it impracticable to bring them all before the court; * * On motion of plaintiffs in the Barnard case, the trial court ordered the cases consolidated, as more fully hereinafter detailed. A jury was waived and the cases, consolidated as aforesaid, were tried to the court, resulting in a finding and judgment in favor of each of the six plaintiffs in the Barnard case in the aggregate amount of $873.89 and for 256 of the plaintiffs in the Neil case in the aggregate amount of $17,654.99, total $18,-528.88. The amount in dispute being in excess of $15,000.00, jurisdiction lies in this court. Art. V, Sec. 3, Constitution of Missouri, V.A.M.S.; Sec. 477.040 RSMo 1959, V.A.M.S.

On appeal, defendant asserts error in two respects:

(1) “The trial court erred in ordering the joinder of the respondents in a class action when in fact, under [S.Ct. Rules 52.08 and 52.09] this is not a proper class action and the respondents have no joint or common cause of action against appellant, but only several contracts, and no common or joint property or fund existed and no joint or common relief could be granted.”

(2) “The trial court erred in determining that the appellant was liable absolutely as an insurer instead of requiring him to use ordinary care as a warehouseman for the preservation of those articles, * * *. The trial court also erred in substituting its own opinion on ‘ordinary care’ for the evidence.”

In 1945, Laws 1945, p. 940, presently Secs. 196.450-196.515 RSMo 1959, V.A.M.S., to which revision all statutory references are made unless otherwise indicated, the Legislature enacted a statute entitled “An Act to regulate the operation of plants for the cold storage of food in individual lockers.” It required, among other provisions, that no such plant should be operated without first obtaining a license from the Department of Agriculture. Section 196.485 requires:

“1. The refrigeration system for a locker plant shall be equipped with accurate and reliable controls for the automatic maintenance of uniform temperatures, provided this shall not apply to locker plants having constant temperature supervision.
“2. Temperatures shall be maintained in the respective rooms as follows:
“(3) Locker room, temperatures of zero degrees or lower, with a tolerance of five degrees above zero degrees.
“3. The locker room shall be equipped with a self-registering, accurate recording thermometer. * * * ”
Section 196.495 requires:
“Every operator of a locker plant shall keep an accurate record of the name and address of the user of each locker.”
Section 196.510 requires:
“1. * * * Operators of locker plants shall not be construed to be ware-housemen, nor shall receipts or other instruments issued by such persons in the operation contracts of their business be construed to be warehouse receipts or subject to the laws applicable thereto, nor shall the provisions of sections 196.450 to 196.515 apply to any warehouseman licensed under the provisions of chapter 415, RSMo.
“2. The operators of all locker plants shall furnish satisfactory locker content insurance to indemnify users against loss, issued by companies duly authorized and licensed to do and transact business in the state of Missouri, in a minimum amount for each locker or locker plant to be determined by the commissioner; provided, however, that such operator may, and is hereby authorized to, collect the pro rata amount of the premium for such insurance from the user in addition to the locker rental as an additional service.”

The essential facts are not in dispute. Sometime after January 1,, 1959, defendant, after being duly licensed, established the plant involved in this case at 228 W. 75th Street in Kansas City. Shortly thereafter lockers were rented to plaintiffs herein, either on monthly or yearly contracts, as each plaintiff desired. Defendant was familiar with the statute and undertook to comply with its provisions. However, on the second Monday in May, 1959, the locker room temperature began to rise above the maximum levels fixed by the statute. That condition lasted for a period of six weeks, until the compressor in the locker room was replaced in July. Meat begins to deteriorate when the temperature rises above five degrees above zero. During the aforesaid period the temperature rose at times to 25 degrees above'zero. When the compressor finally “went out”, defendant closed down the plant and went to St. Louis to’ get a new compressor. That trip caused the plant to-be without any refrigeration for a period of about 48 hours. The meat became unfit for human consumption and was disposed of by defendant. Defendant, at the “request” of the state, carried a policy of insurance on the 300 to 400 lockers rented to his locker customers with the Aetna Casualty and Surety Company. In January, 1960, defendant wrote a letter to his customers “indicating” that they should make a claim against said insurer because he thought that to be “the proper place to make a claim.” Defendant, in effect, concedes that all of the plaintiffs herein (those suing directly and those included in the judgment as a class) had meat stored in lockers rented from defendant during the aforesaid period and that the amount of damages awarded each plaintiff is due him, if liability exists.

In the Neil case, Aetna Casualty and Surety Company was joined -with defendant Murphy as a • co-defendant. The petL tion pleaded the provisions of the locker plant act (Secs. 196.450-196.515) as the standard required by law of the defendant Murphy in the operation of said plant; that, pursuant to the requirements of Sec. 196.510, defendant had purchased and Aetna had issued its indemnity policy No. IMB 78223 which at all material times was in full force and effect; and “that the proceeds from said policy represent a common fund to which all members of the plaintiffs class are entitled.” The answer of Aetna expressly admitted the issuance of said policy and that it was in full force and effect; admitted that the proceeds from said policy represented a common fund to which all members of the plaintiff class were entitled; admitted that there had been failure of the refrigeration plant, allowing the foods stored therein to become unfit for human consumption; and denied its liability.

Following the filing of Aetna’s answer, plaintiffs in the Barnard case filed their motion to “intervene or to consolidate” their action with the Neil case on grounds that they were locker renters of defendant Murphy and had filed suit in the Circuit Court of Jackson County, Missouri, against this defendant; that their cause of action was the same as the class plaintiffs herein; and that they were, therefore proper parties plaintiff in the class action. That motion was sustained and the trial court ordered the consolidation of both cases “for all purposes”. (Emphasis supplied.)

The answer of defendant Murphy admitted that his plant was controlled and regulated by the provisions of the locker plant act; that the policy of insurance issued by Aetna was in full force and effect; denied that it constituted a common fund and alleged that it insured only the named plaintiffs in the Neil case. Defendant’s answer also contained a “motion to consolidate” the Neil case with another suit allegedly pending in the Circuit Court of Jackson County brought by defendant Murphy on behalf of the locker users insured under the said policy of insurance against Aetna. The ground upon which that motion was predicated was that it would “avoid confusion and complication in the work of the court.” The trial court overruled that motion. Defendant did not object to that ruling when it was made, nor did he assert error with respect thereto in his motion for new trial.

When the cases (consolidated for all purposes) came on for trial, plaintiffs, over the objection of Aetna but without objection on the part of defendant Murphy, were granted leave of court to dismiss without prejudice ■as to Aetna; and did so dismiss. The reason for dismissing as to Aetna is not explained in the record, but it is here suggested by plaintiffs that when Aetna admitted that the policy constituted a common fund for the indemnification of all of the plaintiffs, there was no necessity of retaining Aetna as a defendant in order to adjudicate the issues presented in the consolidated class action as against defendant Murphy upon the theory, it seems, that if and when necessary, Aetna could be subjected to garnishment. But, inasmuch as defendant Murphy made no objection to the dismissal and assigned no error to the ruling in his motion for new trial, and now makes no valid objection to the procedure thus taken, it need not be further considered.

We now turn to the matters preserved and assigned for review. Defendant’s contention that these cases (consolidated by order of the trial court as one case for all purposes on motion of plaintiffs in the Barnard case) do not constitute a class action within the meaning of S.Ct. Rules 52.08 and 52.09 cannot be sustained. There is no suggestion that the named plaintiffs were not fairly chosen nor that they do not adequately represent the whole class. The uncontroverted evidence shows that the users of lockers in defendant’s plant, as shown by defendant’s records, were notified of the institution of this action and that the suit would be maintained in behalf of each unless he advised to the contrary. The evidence tended to show that they were fairly chosen and adequately represented, and the trial court so found.

Clause (a) of S.Ct. Rule 52.08, defining class actions, which is substantially identical with Federal Rule 23, reads as follows:

“If persons constituting a class are very numerous or it is impracticable to bring them all before the court, such of them, one or more, as will fairly insure adequate representation of all may, on behalf of all, sue or be sued, when the character of the right sought to be enforced for or against the class is
“(1) Joint, or common, or secondary in the sense that the owner of a primary right refuses to enforce that right and a member of the class thereby becomes entitled to enforce it;
“(2) Several, and the object of the action is the adjudication of claims which do or may affect specific property involved in the action; or
“(3) Several, and there is a common question of law or fact affecting the several rights and a common relief is sought. * * * ”

Defendant insists that no common cause of action existed against defendant; that the rental contracts of the class are several; that no common fund existed; that no common relief could be granted; and that, therefore, these cases are “spurious” class actions within the meaning of clause (a) (3), which clause (it has been held in the federal court) does not authorize a binding judgment in favor of a mere permissive class plaintiff who has not come into court prior to entry of the judgment in his behalf and made proof of his claim. See Hess v. Anderson, Clayton & Co., D.C., 20 F.R.D. 466, 475-483; Pentland v. Dravo Corporation, C.C.A., 3rd Cir., 1945, 152 F.2d 851.

We are convinced that defendant’s insistence that no common relief may be granted plaintiffs on grounds that no common fund exists out of which they may recover their pro rata share of the outstanding insurance policy is without merit. Aetna expressly admitted the issuance of the policy, admitted that it was in full force and effect, and that it constituted a “common fund” in which all members of the plaintiff class were entitled to share. Under those circumstances, defendant Murphy’s mere denial that the policy constituted a common fund and insured only the named plaintiffs cannot serve to destroy the solemn admission of Aetna. In the first place, defendant Murphy, the holder of the policy, did not introduce it in evidence and his bald assertion that it did not constitute a common fund (as expressly admitted by Aetna) does not amount to proof of the fact. Furthermore, the statute, Section 196.510(2), required defendant to furnish locker content insurance to indemnify his locker users against loss in a minimum amount for each locker or locker plant, as determined by the commissioner. Therefore, any policy issued pursuant to those provisions would of necessity constitute a common fund, irrespective of whether it was written on the basis of each locker or on the plant as a unit. Neither is it of moment that the claims of each of the class plaintiffs were several instead of joint. The right to be enforced by each was common to all locker users and the fact that the amount to be recovered by each would be limited to his pro rata share did not militate against the fact that the right to be enforced was common to all. Moser v. Keller, Mo., 303 S.W.2d 135, 150-151(5), (6).

But, even if the theory of “common fund” eventually should fail for some reason not here appearing, clause (a) (2) of S.Ct. Rule 52.08 would, as we read it, clearly authorize the maintenance of these actions, consolidated for all purposes, as a class action. The several claims here made and adjudicated have for their object an adjudication of the several rights of the class plaintiffs •which do or may affect specific property involved in the action, to wit: the outstanding Aetna insurance policy, which policy Aetna admits represents a common fund to which all members of the plaintiff class are entitled.

Neither can defendant’s contention that no case was made against him on the merits stand. He was familiar with the provisions of the locker plant act, admittedly undertook to meet its requirements and admittedly failed to do so. The act, in terms, declares that the operators of locker plants shall not be construed to be ware-housemen nor shall the statutory provisions of the warehouse statutes (Chap. 415) be applicable to them. The minimum temperatures required by the locker plant act to be maintained in every locker plant are mandatory; they are so made for the protection of the locker users; and they declare the public policy of this State in that regard.

We are convinced and hold that every food locker plant operator must be held impliedly to agree with every person to whom he rents a food locker that all foods therein stored shall be kept and maintained in the manner and at the temperature levels prescribed by the act; and that any failure to do so, which results in loss to the locker user, renders the operator liable for the value of the food and for rentals paid during the period in which the spoiled food was in process of deterioration by reason of failure to maintain the temperature levels required by the statute. This for the reason that a statute such as this, in law, becomes a part of every contract made between the locker plant operator and the individual locker renter. 17 C.J.S. Contracts § 330, p. 782; 12 Am.Jur., Contracts, Sec. 240, p. 769; Curators of Central College v. Rose, Mo., 182 S.W.2d 145, 148[4] ; Christy v. Petrus, 365 Mo. 1187, 295 S.W.2d 122, 125 [2] ; Emerson v. Treadway, Mo.App., 270 S.W.2d 614, 622 [19-21]; Cheek v. Prudential Ins. Co. of America, Mo., 192 S.W. 387, 393 [7], L.R.A.1918A 166; Carr v. Montgomery Ward & Co., Mo., 363 S.W.2d 571, 574[3].

Defendant has undertaken in his reply brief to assert and argue several new grounds of error, which, with commendable frankness, he has correctly designated as “additional points and authorities”. It is well settled that assignments of error presented for the first time in a reply brief cannot be considered. “Issues submitted in an appellant’s brief on original submission are not to he enlarged by presentations in a reply brief as a respondent is entitled to an opportunity to answer an issue presented by an appellant.” State ex rel. Houser, Atty.

Gen., v. St. Louis Union Trust Co., Mo., 248 S.W.2d 592, 594[1]. See also Denney v. Spot Martin, Inc., Mo.App., 328 S.W.2d 399, 405 [6, 7]; Myers v. Karchmer, Mo., 313 S.W.2d 697, 710[24]; In re Buder’s Estate, Mo., 317 S.W.2d 828, 837 [4, 5]; 3 Mo.Dig., Appeal and Error,.

The judgment is for the right party and is affirmed.

All concur.


author: SMITH, Justice.

text:
    The OHIO OIL COMPANY, Petitioner, v. Darrell SMITH, Respondent.
    No. A-9066.
    Supreme Court of Texas.
    March 6, 1963.

      Graves, Dougherty, Gee & Hearon, Wm. L. Garwood, Austin, Stubbeman, McRae, Sealy & Laughlin, F. H. Pannill, Midland, J. O. Terrell Couch, Houston, for petitioner.
    Warren D. Barton, Garland Casebier, Midland, for respondent.
   SMITH, Justice.

This is an indemnity contract case wherein the indemnitee, Ohio Oil Company, was awarded a summary judgment in the District Court of Midland County, Texas, for recovery under the indemnity provisions of a work-over contract. The Court of Civil Appeals reversed and rendered judgment in favor of the indemnitor, Smith 356 S.W.2d 443. The Ohio Oil Company is Petitioner here. The parties will hereinafter be referred to as Ohio and Smith; emphasis will be ours unless otherwise indicated.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

On March 31, 1953, Ohio and Smith entered into a written contract in which Smith agreed to perform work-over operations on one of Ohio’s wells in Lea County, New Mexico. The parties agreed that Ohio would furnish certain labor, material and services in addition to those furnished by Smith. Among other things, Ohio agreed to furnish water, fuel, special fluids (drilling muds and emulsions), mud-testing equipment, tubing, packers, casing-heads, “Christmas trees”, etc.

In April of 1953, one Alva Hunt, who was Smith’s employee, was injured in the performance of the work-over service. Hunt’s injuries were sustained when he fell from a test tank owned by Ohio. In the opinion of the Court of Civil Appeals the test tank was not one of the items required to be furnished by either party under the terms of the contract. However, the evidence is conclusive that the tank in question was furnished pursuant to the terms of the contract, and for the purpose of the work-over operations. In response to questions by counsel, Smith stated in his deposition:

Q: “ * * * Mr. Smith, at the conclusion or during the course of this work, was it necessary from time to time to make tests to see what you had accomplished or what had been done, what needed to be done?
A: “Yes, sir.
Q: “Would those tests include opening the well and flozving into tanks, or whether it would flow, what it would flow, or how much, was that part of the work?
A: “Yes, sir.
Q: “Would that flowing — it would be flowed into tanks, is that not right, rather than into pits?
A: “Not necessarily, it might be pits or it might be tanks.
Q : “Did you in your work move tanks onto a location or did you use tanks that were already there, or how would that take place?
A: “I didn’t have any tanks of my own, the tanks or pits were always furnished by the company .”

As to the tank in question, Smith stated:

A: “ * * * the tank was more or less a standard tank used on leases and in this type of work, set there for us to test the well into.”

Hunt brought a negligence action against Ohio, alleging that Ohio had failed to provide him a safe place to work, and claiming $250,000 in damages for the loss of a leg. Smith did not take part in such action, but had been notified by Ohio of Hunt’s claim. Ohio subsequently entered into an agreed judgment awarding Hunt $15,000 after Smith refused Ohio’s demand that he defend.

In April of 1957 Ohio filed this suit against Smith alleging its contractual right to indemnity from Smith for settlement costs and expenses, and subsequently moved for summary judgment on the basis of the pleadings, affidavits, Smith’s deposition and the contract. The District Court granted Ohio’s motion for summary judgment and rendered judgment against Smith for the amount of the agreed judgment ($15,000), and other expenses and attorney’s fees ($4,706) incurred by Ohio in defense of Hunt’s claim. There is no question as to the reasonableness of the agreed judgment or the expenses.

The Court of Civil Appeals in reversing the District Court has held that the “express negligence” and “strict construction” doctrines preclude the application of the indemnity provisions of the work-over contract since it was the indemnitee’s not the indemnitor’s negligence that was the cause of Hunt’s injuries. The Court of Civil Appeals rendered judgment for Smith even though he had not moved for summary judgment in the trial court. In the trial court Smith filed only exceptions in opposition to Ohio’s motion for summary judgment coupled with a motion to dismiss.

The main controversy centers around Sections 15 and 17 of the work-over contract which provide:

“15. OHIO INDEMNIFIED:
“Ohio shall not be liable or responsible for and Contractor shall save and hold harmless Ohio from and against any and all claims and damages of every kind, for injury to or death of any person or persons and for damage to or loss of property, arising out of or attributed, directly or indirectly, to the operations of Contractor hereunder. Contractor shall likewise indemnify Ohio for any or all injury or damage to property belonging to Ohio, arising out of or in connection with or resulting from any and all acts or omissions of Contractor hereunder, (emphasis added)
“17. STATUTES TO BE COMPLIED WITH:
“(a) Contractor agrees to comply with the Workmen’s Compensation Act of the State of New Mexico and to pay or cause to be paid all compensation, medical or hospital bills which may become due or payable thereunder, and to protect and indemnify Ohio from and against any and all liability by reason of injury of employees of Contractor. Contractor shall furnish Ohio with a certificate from the State Agency charged with the administration of the Workmen’s Compensation Act evidencing Contractor’s compliance therewith.” (Emphasis added.)

The principal issue presented here is whether under the provisions of this contract the indemnitor (Smith) is liable to the owner-indemnitee (Ohio) for damages and expenses incurred and arising out of the sole negligence of the indemnitee. Though the issue is simply stated, it is not so simply answered, for again we are faced with the argument that for the sake of certainty this Court should depart from the established jurisprudence of this state and adopt the “express negligence” doctrine. The resolving of the issue is further complicated by the assertion that the general rule in this state has been limited in its application by Mitchell’s v. Friedman, infra, to those instances wherein the parties have contracted as to some specific operation or instrumentality.

The “Express Negligence” Doctrine

Stated generally, the “express negligence” doctrine provides that contracts will not be construed so as to indemnify a person against his own negligence unless such intention is expressed in specific terms. It is Ohio’s contention that this doctrine has been rejected by the courts of this state. The Court of Civil Appeals drew a distinction between cases involving the rental or lease of real or personal property wherein the “express negligence” doctrine has been rejected in Texas, and cases involving agreements between owners and contractors. Ohio takes the position that this distinction is untenable, but if the doctrine does apply in owner-contractor situations, then it nonetheless does not apply in instances where only the passive negligence of the owner is involved. Smith contends that the Court of Civil Appeals properly applied the doctrine in this case.

The text authorities are almost unanimous in agreeing that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting to him through his own negligent acts, where such intention is not established in express terms. See generally: 27 Am.Jur., Indemnity, § 15; Anno. 175 A.L.R. 1, §§ 17 and 18. One authority states that “[tjhere are literally hundreds of cases supporting this proposition.” 175 A.L.R. 1, § 17, n. 11. Indeed, it has been stated that the majority of the states hold agreements to indemnify against the negligence of the indemnitee to be void. See: 27 Am.Jur., Indemnity § 9. This has never been the rule in Texas.

In this state, contracts written or construed so as to allow indemnity for liability arising out of the indemnitee’s own negligence have long been held not to be-violative of the public policy. Northern Texas Traction Co. v. City of Polytechnic, Tex.Com.App. (1922), 236 S.W. 73; James. Stewart & Co. v. Mobley, Tex.Civ.App. (1955), 282 S.W.2d 290, wr. ref. While there is a majority and a minority rule on the subject, the jurisprudence of this state-commits us to the proposition that while the intent to indemnify against the results-of the indemnitee’s negligence must be-clear, it need not be expressed. Houston & T. C. R. Co. v. Diamond Press Brick Co., 111 Tex. 18, 222 S.W. 204, 226 S.W. 140; Northern Texas Traction Co. v. City of Polytechnic, supra; James Stewart & Co. v. Mobley, supra; Mitchell’s v. Friedman, 157 Tex. 424, 303 S.W.2d 775.

In the Friedman case, supra, this court, stated:

“It is not necessary, therefore, for the parties to say in so many words that they intend to protect the indemnitee against liability for negligence. An obligation to hold harmless from claims, liability or damage resulting from a specified operation or instrumentality will be enforced in accordance with its terms even though the indemnitee may thereby be relieved of the consequences of his own negligence.”

Smith would have us interpret this statement to mean that general words of indemnity can only be used to exonerate the indemnitee for liability for his own negligence when the parties have contracted as to some specific operation or instrumen tality. Smith argues that the phrase “operations of the Contractor hereunder” found in Sec. IS of the contract is not a specific • operation. Consequently, it is urged that since no specific operation has been set out, then this court should refuse to give effect to that paragraph. We disagree. The general rule in this state has not been so restricted by the Friedman case.

In the Friedman case, the owner of a building entered into a 10-year lease contract, and the indemnity clause provided:

“ * * * Lessor shall not be liable to Lessee or to Lessee’s * ⅜ * patrons, or visitors, for any damage to person * * * due to the building on said premises or any appurtenances thereof being improperly constructed, or being or becoming out of repair, nor for any damages from any defects or want of repair of * * * the building of which the leased premises form a part ⅝ # ⅜ i>

The plaintiff was injured by falling plaster and lathing, and in his suit against the owner-lessor, original lessee, and sub-lessee it was alleged that the air conditioning ducts, the plaster and lathing surrounding same and the ceiling were negligently constructed. The owner-lessor filed a cross action against the original lessee for indemnification. This court held that the original lessee was obligated to indemnify the owner-lessor under the terms of the contract even though general words of indemnity were used.

The holding of the Friedman case was based on the decisions in James Stewart & Co. v. H. B. Mobley, supra; and Houston & T. C. R. Co. v. Diamond Press Brick Co. supra, and the language of the Friedman case must be analyzed in the light of these decisions. In the Stewart case the plaintiff was injured when a hoist upon which he was riding fell. Part of the indemnity provisions of the contract did expressly pertain to the operations of the hoist, and the subcontractor did agree to hold the contractor harmless from any and all suits brought against the contractor for any injury that resulted from the use of hoists. The court rejected the contention of the indemnitor subcontractor that the “express negligence” doctrine should be applied, and held that the subcontractor must indemnify the indemnitee contractor for the liability that resulted to the contractor from the contractor’s negligent operation of a hoist. Though the case does involve a specific instrumentality, the CcuH did not place 'its holding on the ground that the “express negligence” doctrine was avoided because the part of the contract upon which the indemnity was predicated related to a specific instrumentality.

The landmark case in this area is Houston & T. C. R. Co. v. Diamond Press Brick Co., supra. In that case the indemnitee Railroad agreed to construct, maintain and operate a spur track for the indemnitor Brick Company. In the contract the Brick Company agreed:

“ * * * to save the (Railroad) harmless from any and all claims for damages arising from any cause whatsoever growing out of the construction, maintenance, and operation of said spur track * *

The Railroad was found liable in a suit by a person who was injured due to the Railroad’s negligence in maintaining the track at a public crossing. Indemnity was allowed the negligent indemnitee Railroad under the generally worded indemnity provisions of the contract even though no specific operation or instrumentality, i. e., the public crossing, was set out in the indemnity clause.

Smith cites the case of Westinghouse Electric Corp. v. Childs-Bellows, Tex.Civ.App. (1961), 352 S.W.2d 806, wr. ref., in support of his contention that general words of indemnity will not free the indemnitee from liability from his own negligence unless such intent is clear, and the indemnity clause relates expressly to some specific operation or instrumentality. In the Childs-Bellows case, supra, the indemnitor, Westinghouse, had a subcontract to install elevators in an office building being constructed by the indemnitee, Childs-Bellows. In two separate accidents two Westinghouse employees were injured, and suit was brought against Childs-Bellows. A settlement was reached, and Childs-Bellows sought and was denied indemnity from Westingthouse. Westinghouse had agreed only to indemnify for “ * * * personal injury, growing out of, or incident to or resulting from the performance * * * [of] the Work * * * ” of installing elevators. Indemnity was denied because the injuries resulted from causes which had absolutely no connection with the work undertaken by Westinghouse. The Court concluded that the indemnity provision in question “ * ⅜ * does not show an intent by the parties to indemnify Childs-Bellows for injuries to persons resulting from work which was under the exclusive jurisdiction of Childs-Bellows as general contractor.” This case is clearly distinguishable from the case at bar. Here, Smith agreed to indemnify Ohio for all claims for injury to any person arising directly or indirectly from the workover operations, and the injuries did result from the work undertaken by Smith.

In our opinion the intent of the parties as expressed in unambiguous words of indemnity, controls the determination of whether the indemnitee is to be relieved from liability for his own negligence. It cannot be said that this rule is limited to instances wherein the parties specify one or more operations or instrumentalities to be used in carrying out their obligations under a contract. In such cases indemnity may be awarded. James Stewart v. H. B. Mobley, supra, Mitchell’s v. Friedman, supra. However, it may also be awarded in eases such as this where the intent is clear that such result is to be had as to any injury or damage that arises in the course of the effectuation of the object or objectives of the contract. Houston & T. C. R. Co. v. Diamond Press Brick Co., supra. See also: Smoke v. Turner Construction Co., D.C., 54 F.Supp. 369; Russell, for use of Continental Cas. Co. v. Shell, 339 Ill.App. 168, 89 N.E.2d 415; Buffa v. General Motors Corporation, D.C., 131 F.Supp. 478; Turner Construction Co. v. Belmont Iron Works, D.C., 158 F.Supp. 309; Stern v. Larocca, 49 N.J.Super. 496, 140 A.2d 403; Metropolitan Paving Co. v. Gordon Herkenhoff & Associates, 66 N.M. 41, 341 P.2d 460; Northern States Co. v. A. Finkle & Sons Co., 8 Ill.App.2d 419, 132 N.E.2d 59; Bounougious v. Republic Steel Corporation, 7 Cir., 277 F.2d 726.

In the case at bar the distinction drawn by the Court of Civil Appeals in regard to the propriety of the application of the “express negligence” doctrine in cases involving indemnity agreements between owners and contractors was based on the observation that in such instances “[t]he work to be performed seldom consists of a single ‘specified instrumentality’ or of a single ‘specified operation.’ ” Based on this distinction the court concluded that in cases involving owner-contractor agreements, where the specific operations or in-strumentalities are not set out in the indemnity clause, the “express negligence” doctrine is to be applied.

The “express negligence” doctrine has, in effect, been rejected in this state not only in instances involving the rental or leasing of property, but also in cases where an owner-contractor relationship exists. See: Houston & T. C. R. Co. v. Diamond Press Brick Co., supra. In regard to the distinction drawn, we can see no reason why the Courts should not apply the same rules of law and construction to written contracts between owners and contractor as are applied to any other business contract when intent is just as clearly expressed. In owner-contractor situations judicial construction of indemnity clauses to cover the indemnitee’s negligence notwithstanding absence of an express provision to that effect in the contract has been said to be common. See: Stern v. Larocca, supra.

Strict Construction (Strictissimi Juris)

The Court of Civil Appeals has held that in owner-contractor situations the scope and extent of the indemnity clause of the contract should be more strictly construed than would be the case if the indemnity clause was one involving a contract for the rental or lease of a building or equipment. Smith contends that the parties did not intend that Ohio would be indemnified for liability arising out of its own negligence, and that the words of Sec. 15 are so broad that it renders the intent of the parties unclear. It is argued that in such cases the doctrine of strictissimi juris is properly applied. Further, if a narrow interpretation is given to Sec. 15 the provision will not hold Smith liable for Ohio’s negligence.

Ohio contends that the intent of the parties is clear, and that in such instances ordinary rather than strict rules of construction are to be applied. It is asserted that the Court of Civil Appeals has erred in construing this contract in an artificially strict manner against the indemnitee. We agree with Ohio.

The doctrine of strictissimi juris is not a rule of construction to be used in the determination of intent in a contract of indemnity. The words of the contract, as reflective of intent, are to be construed by the application of ordinary rules of construction. It is only after the intent has been determined that the doctrine of strictissimi juris is applicable to prevent the liability under the contract from being extended beyond the terms of the agreement. Mitchell’s v. Friedman, supra; James Stewart & Co. v. Mobley, supra; See also: Crews Well Service v. Texas Company, Tex.Civ.App. (1962), 358 S.W.2d 171, wr. ref. n. r. e.; Humble Oil & Refining Company v. Wilson, Tex.Civ.App. (1960), 339 S.W.2d 954, wr. ref., n. r. e. Indemnity agreements between owners and contractor are not more strictly construed than such provisions in other business agreements.

Intent of the Parties

Section 15 of the contract embodies the manifestations of the intent of the parties in regard to indemnity. Though broad words are used, they are not to be strictly construed, for the intent alone, as expressed in the words of indemnity, controls the scope of the coverage. The Court of Civil Appeals held that the indemnity provision- of the contract is not broad enough to cover claims and damages caused by the sole negligence of Ohio. We disagree.

It is the general rule of the law of contracts that where an unambiguous writing has been entered into between the parties, the courts, in construing that writing will give effect to the intention of the parties as expressed or apparent in the writing. In the usual case, the instrument alone will be deemed to express the intention of the parties for it is objective, not subjective, intent that controls. See: Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617, 620; See generally: Williston on Contracts § 610; Restatement of the Law of Contracts, § 230. Applying these rules to the construction of Sec. 15, it is clear that Ohio is entitled to indemnity from Smith even though it was Ohio’s negligence that resulted in Hunt’s injury.

Smith agreed to “ * * * save and hold harmless Ohio from and against any and all claims and damages of every kind, for injury to * * * any person * * * arising out of or attributed, directly or indirectly * * *” to his operations under the contract. Hunt’s injuries may certainly be attributed to Smith’s operations, and the indemnity provision makes reference to the objective of the contract. When the indemnitor has agreed to save and hold harmless the indemnitee from liability for any and all claims and damages of every kind attributed directly or indirectly to his operations under the contract, the in-demnitee may have recovery over and against the indemnitor for all reasonable expenses incurred in defending or settling the claim asserted against him.

Since we have concluded that the words of Sec. 15 are determinative of this appeal, we need not consider the application of Sec. 17, supra, to the facts of this case, nor the issue raised as to the propriety of the action of the Court of Civil Appeals in rendering judgment for Smith when no motion for summary judgment had been filed by him in the trial court.

The judgment of the Court of Civil Appeals is reversed, and that of the trial court is affirmed.


author: CULVER, Justice. SMITH, Justice

text:
    W. C. BRYAN et al., Petitioners, v. C. W. THOMAS, Respondent.
    No. A-9163.
    Supreme Court of Texas.
    Feb. 6, 1963.
    Jones & Jones, Mineóla, Woodrow H. Edwards, Mt. Vernon, for petitioners.
    Clark & Clark, Greenville, for respondent.
   CULVER, Justice.

The petitioners, W. C. Bryan, together with his children and the heirs of J. E. Johnson, brought this suit under the provisions of the Texas Declaratory Judgment Act to construe a mineral deed executed by Mrs. Josie Bryan, the widow, and the children of W. B. Bryan, in favor of C. W. Thomas and for a decree determining the mineral interests of the parties in a certain tract of land situated in Hunt County. The deed to Thomas recited a conveyance of “all of our undivided interest” in and to all the oil, gas and other minerals in and under the described tract of land, together with a general warranty. That deed was executed and filed for record in February, 1960.

In 1924 W. B. Bryan became the record owner of an undivided ½ interest in the minerals in this 100-acre tract of land involved here.

The contention of the plaintiffs, petitioners here, is that in 1924 W. C. Bryan, J. E. Johnson and W. B. Bryan, entered into a joint venture relationship to acquire mineral properties and that this undivided interest standing in the name of W. B. Bryan was owned in the proportion of ⅛ each.

The trial court adjudged the ownership as follows: ⅜6 interest in the minerals to W. C. Bryan and his children, an undivided ¾2 interest to the heirs of J. E. Johnson, and an undivided s%e to C. W. Thomas. The Court of Civil Appeals modified this judgment so as to vest in W. C. Bryan and his children a ¾2 interest in the minerals and otherwise affirmed. 359 S.W.2d 131. To that modification none of the parties object.

The petitioners complain, however, of the action of the Court of Civil Appeals in overruling without discussion what they say were the two major points presented on appeal, namely, that as a matter of law the evidence established the joint enterprise between the two Bryans and Johnson and therefore the W. C. Bryans and the Johnson heirs each own an undivided ⅛ interest of the undivided [4 or an undivided ⅛ in the minerals underlying the entire tract of 100 acres, and secondly, that there is no evidence to support 'the implied holding of the trial court that the mineral deed from Mrs. Josie Bryan et al. to C. W. Thomas conveyed more than an undivided ⅛ mineral interest to him. The record contains no findings of fact and conclusions of law.

In our opinion the petitioners have not proved as a matter of law that they are ■entitled to a greater interest than that determined by the Court of Civil Appeals, namely, ¾2 to each group.

Petitioners introduced a document carrying the date of August 9, 1924, listing certain properties among which is a ¼6 royalty in the Latham 100-acre tract with the notation that these properties are jointly owned hy W. B. Bryan, J. E. Johnson and W. C. Bryan, each owning a 1/3 undivided interest .and signed by the three parties named therein. W. C. Bryan testified that the signatures are genuine.

The record shows that W. B. Bryan and W. C. Bryan did, on the 21st of February, 1936, convey an undivided ,⅛ interest in the ¾6 royalty in the Latham 100 acres to W. A. Moncrief for a term of 15 years and on the same day leased the tract to W. A. Mon-crief for a term of 10 years. The record further shows that thereafter on the 20th day of August, 1936, W. B. Bryan conveyed by deed to W. C. Bryan an undivided interest in the minerals which the Court of Civil Appeals has construed to be a ¾2. Also on the 23rd day of December of the same year W. B. Bryan conveyed to J. E. Johnson an undivided ¾2 interest in the minerals. All of these conveyances appear to have been promptly recorded in the deed records.

We think the trial court could properly have based its judgment upon the conclusion that C. W. Thomas was an innocent purchaser for value and without notice, actual or constructive, of any undisclosed claim on the part of the petitioners.

In many, if not in a majority of the jurisdictions, the rule is that a recorded quitclaim deed when taken in good faith for & valuable consideration without notice, will prevail over a prior unrecorded deed. On the other hand, some states including Texas, have taken the view that a quitclaim deed conveys only the interest of the grantor at the time he makes it and that a recorded quitclaim deed will not exclude the operation of a prior unrecorded deed. See 59 A.L.R. pp. 633-649, 162 A.L.R. p. 560.

However, Finch v. Trent, 3 Tex.Civ.App. 568, 22 S.W. 132, 133 (1893) no writ history, observes that “[wjhile the doctrine that a quitclaim deed will not support a title founded alone upon a bona fide purchase has been the recognized rule in this state since the decision in Rodgers v. Burchard, 34 Tex. [441, 442] 453, and Harrison v. Boring, 44 Tex. [255] 260, the trend of the later cases seems to be towards a restriction of the rule.” This trend seems to have continued, as borne out for example, by Williams v. Rabb, Tex.Civ.App. (1942), 161 S.W.2d 121, wr. ref. In that case the deed read: “[D]o by these presents bargain, sell, convey, and deliver * * * all my rights, title and interest in and to that certain tract or parcel of land.” But since the deed made reference to the land as “the 20 acres herein conveyed” and the grantor reserved an undivided 10-acre mineral interest, the deed was held to indicate an intention to convey the land. Therefore, it was held to be not merely a quitclaim deed but was sufficient to support the plea of innocent purchaser. See also Benskin v. Barksdale, Tex.Com.App. (1923), 246 S.W. 360; Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62 (1959).

In Garrett v. Christopher, 74 Tex. 453, 454, 12 S.W. 67, it is said that “[i]f it appears that the intention was to convey the land itself, then it is not such quitclaim deed, although it may possess characteristics peculiar to such deeds.”

The deed under consideration here from Mrs. Bryan to Thomas is more than a quitclaim deed. It recites that the grantors “have granted, sold, conveyed, assigned and delivered and by these presents do grant, sell, convey, assign and deliver unto the said grantee all of our undivided interest in and to all of the oil, gas and other minerals in and under and that may be produced from the following described land situated in Hunt County, Texas, * * The deed also grants to Thomas the right of ingress and egress at all times for the purpose of mining, drilling and exploring said land for oil, gas and other minerals and removing the same therefrom. It provides that the grantee shall own all gas and other minerals in and under said lands, together with all royalties and rentals that might be provided in future oil and gas leases, and concludes with the usual habendum and general warranty clauses.

To remove the question from speculation and doubt we now hold that the grantee in a deed which purports to convey all of the grantor’s undivided interest in a particular tract of land, if otherwise entitled, will be accorded the protection of a bona fide purchaser.

This view of the matter finds full support in Cook v. Smith, 107 Tex. 119, 174 S.W. 1094, 3 A.L.R. 940. The opinion in that case draws this distinction: “If, according to the face of the instrument, its operation is to convey the property itself, it is a deed. If, on the other hand, it purports to convey no more than the title of the grantor, it is only a quitclaim deed.” The deed in that case read: “have bargained, sold, released and forever quitclaimed * * all my right, title and interest in and to that certain tracts or parcels of land * * * and all other real estate that I now own and am possessed of in the town of Paducah in Cottle County, Texas.” So far, the conveyance was said to constitute merely a quitclaim. But the deed proceeded further to say “and it is my intention to here now convey to the said A. A. Neff all the real estate that I own in said town of Paducah in Cottle county, Texas, whether it is set out above or not.” The court held that the latter clause clearly disclosed the intention of the grantor to convey all of the property which he owned in the town of Paducah. Therefore the purchaser was to be regarded as a bona fide purchaser for value and entitled to protection as such. We can see no material distinction between a conveyance of all of the real estate one owns in a town and a conveyance of all of the grantor’s undivided interest in a certain tract. The interest conveyed is no more definite in one than in the other.

Also Benton Land Co. v. Jopling (Tex.Com.App.1927), 300 S.W. 28, citing Cook v. Smith, makes the following pertinent holding:

“ * * * If the language of the instrument, as a whole, is such as reasonably to imply a specific purpose on the part of the parties to effect a transfer of particular rights in respect to the land described therein, the instrument, so far as such particular rights are concerned, should be treated as purporting a conveyance of the rights themselves, and not as a mere quitclaim. This we regard as the underlying principle of the holding, so often made, to the effect that, if the language of the instrument fairly implies a purpose to convey the land itself — i. e. the particular rights constituting ownership — the instrument is not a mere quitclaim deed. * * * ”

We might add by way of illustration, suppose the Bryan to Thomas deed had read “we have granted, sold and conveyed our one-half undivided interest less the fractional interests heretofore conveyed by W. B. Bryan to J. E. Johnson and W. C. Bryan as shown of record,” no one would question the right of the grantee as a bona fide purchaser. That conveyance would be more definite as to the quantity of the interest conveyed, but not at all more certain of the intention to convey title to the undivided interest than as expressed in the deed actually given by Mrs. Bryan.

Petitioners contend that the conveyances to Moncrief were sufficient to put Thomas on notice that W. C. Bryan owned some interest in the minerals. Even if this be true, the deed records show that after the execution of these instruments W. B. Bryan conveyed to W. C. Bryan an undivided interest which petitioners pleaded and maintained was an undivided ½2 and the Court of Civil Appeals so construed the conveyance.

We are of the opinion therefore that one inspecting the deed records would be justified in assuming that whatever equitable interest W. C. Bryan might have had, it was conveyed to him by the later deed from W. B. Bryan. The judgment of the Court of Civil Appeals is affirmed.

SMITH, Justice

(concurring).

I concur in the result. The petitioners, plaintiffs in the trial court, have failed to prove either a legal or equitable title. Therefore, the question of innocent purchaser need not be decided. The Court has unnecessarily passed upon the question, and more than that has held contrary to the well-settled rule governing the construction of deeds similar to the one involved in the present case. Another thing, the Court apparently is charging Thomas with the burden of proving that he was an innocent purchaser. The burden of proof is always with the party asserting an equitable title. In this case, the burden of proof was with Petitioners, W. C. Bryan et al., and not Thomas. Bryan et al. failed to offer any evidence to show that Thomas was not an innocent purchaser. For that reason, if none other, Thomas should recover. See: Tasher v. Foster Lumber Co., Tex.Civ.App., 205 S.W.2d 665, no wr. hist.; Miles v. Martin, 159 Tex. 336, 321 S.W.2d 62.

The Court should not select this case as a forum to announce new theories and new law. We should select a case where the issue is squarely drawn and fully presented.

I concur in the result.


author: NORVELL, Justice.

text:
    SPENCE & HOWE CONSTRUCTION COMPANY, Petitioner, v. GULF OIL CORPORATION, Respondent.
    No. A-9045.
    Supreme Court of Texas.
    March 6, 1963.

      Fulbright, Crooker, Freeman, Bates & Jaworski, Newton Gresham and Larry W. Starr, of above firm, Houston, for petitioner.
    Baker, Botts, Andrews & Shepherd, Finis E. Cowan, and William Harvin, with above firm, Houston, for respondent.
   NORVELL, Justice.

This Court granted writ of error upon petitioner’s point which asserted that:

“The Court of Civil Appeals erred in holding that the written contract sued upon provided indemnity to Respondent for an accident which the jury found upon sufficient evidence was solely caused by Respondent’s own negligence and by equipment furnished by Respondent.”

We are in agreement with the Court of Civil Appeals that liability herein is controlled by a written agreement designated as a “purchase order” which bears date of November 3, 1954. The accident which gave rise to this litigation occurred on October 29, but the written memorandum of agreement — the “purchase order” recites that the work commenced on October 26 and it appears that the form of “purchase order” employed was identical in form with the last previous contract between the parties relating to a similar piece of work. We need not add to the discussion of this matter which is contained in the opinion of the Court of Civil Appeals. See, Gulf Oil Corporation v. Spence & Howe Construction Co., Tex.Civ.App., 356 S.W.2d 382.

A question relating to the construction of an indemnity contract is presented. We are to take the wording of the instrument, consider the same in the light of the surrounding circumstances, and apply the pertinent rules of construction thereto and thus settle the meaning of the contract. The issue is squarely joined in that the respondent asserts that:

“The Court of Civil Appeals properly held that the contract was so worded as to afford Respondent the right to indemnity on the basis of the relevant jury findings and the undisputed evidence.”

The problem is one of contract construction and not public policy, and is so treated by the parties. Only a few jurisdictions, and Texas is not one of them, hold that a contract of indemnity against the results of one’s negligence is contrary to public policy in that such contracts tend to encourage careless conduct. This theory or doctrine is not regarded as being sound and has been described as being somewhat fanciful. From a public policy standpoint, an indemnity agreement against one’s negligence issued by an insurance company would be as objectionable for encouraging carelessness as would an indemnity contract issued by any other form of entity or by a natural person. See, Griffiths v. Broderick, 27 Wash.2d 901, 182 P.2d 18, 175 A.L.R. 1, and annotation following in the American Law Reports. Of course, certain types of indemnity agreements may be contrary to public policy for various other reasons, Restatement of the Law of Contracts, §§ 572, 575, but the contract with which we are concerned cannot be so classified. Ordinarily, however, one does not contract against the results of his own negligence. Such agreements, except for insurance contracts, must be regarded as exceptional rather than usual in the majority of business transactions. Before such indemnity contracts may be enforced it must clearly appear that the contracting parties intended that the indemnitor would be held liable for damages resulting from the negligence of the indemnitee.

Spence & Howe Construction Company is a contracting firm engaged in heavy construction, the building of docks and related work. It had been doing pile driving work for Gulf Oil Corporation for a number of years. As a usual thing, these jobs were done in pursuance of a written order from Gulf to Spence & Howe. These orders were on a purchase order form and the particular one here involved was dated November 3, 1954 and addressed to Spence & Howe. Among other provisions it contained the following clauses:

The order provided that it was subject to the instructions and conditions printed on the reverse side thereof. The following stipulation was among such provisions:

“13 — In case of entry by the Seller, (Spence & Howe) or of any of Seller’s agents or employees, upon the property or premises of the Purchaser, for the purpose of construction, erection, inspection or delivery under this order, the Seller agrees to provide all necessary sufficient safeguards and to take all proper precautions against the occurrence of accidents, injuries or damages to any persons or property, and to be responsible for and to indemnify and save harmless the Purchaser from all loss or damage and any or all claims arising by reason of accidents, injuries or damage to any persons or property in connection ivith such work, and from all fines, penalties or loss incurred by reason of the violation of any law, regulations or ordinance; and further agrees to defend at the Seller’s expense, any and all suits or actions, civil or criminal arising out of such claims or matters; and further agrees to procure and carry such insurance of employees as may be required by any workmen’s compensation act or other law, regulation or ordinance, which may apply in the premises.” (Emphasis supplied)

Three days after the work had commenced on the propane tank installation, W. C. Cummings, a nineteen-year-old employee of Spence & Howe, was severely injured while working in the leads of the pile driving machine. The operator of the crane which was used to raise and set the piling in place abruptly lifted a piling timber and Cummings, in an effort to avoid being struck by the piling, came in contact with a cable and pully of the machine and sustained injuries to his hand. The crane was owned by Gulf and at the time of the accident was being operated by a Gulf employee. Gulf made a settlement of an action which Cummings brought against it and then sued Spence & Howe for indemnity. In the present case the jury found that such settlement was reasonable and had been made in good faith. The jury also absolved Spence & Howe of any negligence and found that the negligence of the crane operator and the use of Gulf equipment was solely responsible for Cummings’ injuries. The trial court entered judgment that Gulf take nothing. This judgment was reversed by the Court of Civil Appeals which in turn rendered judgment in favor of Gulf and against Spence & Howe for the recovery of $31,000. 356 S.W.2d 382.

In Mitchell’s, Inc. v. Friedman, 157 Tex. 424, 303 S.W.2d 775, this Court discussed the rule that an indemnity agreement will not protect the indemnitee against the consequence of his own negligence unless the obligation is expressed in unequivocal terms. The obvious purpose of this rule is to prevent injustice. A contracting party should be upon fair notice that under his agreement and through no fault of his-own, a large and ruinous award of damages may be assessed against him solely by reason of negligence attributable to the opposite contracting party. See, Perry v. Payne, 217 Pa. 252, 66 A. 553. Texas does not, however, follow the refinement of the rule which requires that the agreement, in order to effectually embrace the negligence of the indemnitee, should expressly so state. It was stated in Friedman that, “It is not necessary * * * for the parties to say in so many words that they intend to protect the indemnitee against liability for negligence.” The rule is that when the wording of the contract is sufficiently broad to cover the negligence of the indemnitee and the situation of the parties with reference to the subject matter of the contract is-such that it can clearly be said that the parties intended that the negligence of the in-demnitee should be covered by the indemnity agreement, then liability thereunder will be sustained whenever the injury asserted as a basis for indemnity is one which arose out of the operations embraced by the contract.

In Friedman the lease of a building for business purposes was involved. The lease provided that the “Lessee accepts said premises as suitable for the purposes for which same are leased and accepts the building and each and every appurtenance thereof, and waives defects therein and agrees to hold the Lessor harmless from all claims for any such damage,” that is, damages for injuries sustained by Lessee's employees, patrons or visitors due to the build ing on the premises or any appurtenances thereto being in a state of disrepair. There was no express statement that the indem-nitor would indemnify the indemnitee for damages sustained by reason of the negli.gence of the indemnitee, yet, under the contract, it was clear that the indemnitor had accepted the premises in their then existing condition and assumed all liability that might arise because of a defect in ■the building or the appurtenances thereof. It was contemplated by the parties that the premises would be used for business purposes and it is reasonably clear that the lessor intended to assume any and all liability which might arise from the use of the premises, including injuries occasioned by defects in the building due to the negligence of the lessor or caused by some other factor.

It appears from the report of Houston & Texas Central Railroad Company v. Diamond Press Brick Company, 111 Tex. 18, 222 S.W. 204, 226 S.W. 140 that the brick company had prevailed upon the railroad to build a spur track for its benefit. The brick company agreed to bear the expense of keeping the spur track in good condition, although the railroad operated the trains over the spur and was under a statutory duty to maintain proper crossings. Although the brick company did not, in so many words, agree to indemnify the railroad for damages caused by the railroad’s negligence, it did agree to save the railroad harmless from any and all claims for damages arising from any cause whatsoever growing out of the construction, maintenance and operation of the spur track. This Court held that the parties must have contemplated that the railroad’s negligence was comprehended by the indemnity contract. The contract related to operations over a designated spur track. As the railroads operated all trains over the spur and was bound by law to maintain proper crossings, the Court reasoned that as the railroad could only be held liable for negligence or a failure to fulfill a legal duty, the “save harmless” agreement would be meaningless unless it was construed to include the railroad’s negligence and failure to comply with its legal duty.

In James Stewart & Co. v. Mobley, Tex.Civ.App., 282 S.W.2d 290, wr. ref., an employee of a subcontractor was injured when an elevator or hoist of the prime contractor dropped some eighteen or twenty feet. The employee sued the prime contractor and a compromise settlement was made on the basis of a suit for indemnity by the prime contractor against the subcontractor. The contract did not, in so many words, provide that the prime contractor should be indemnified against its own negligence. However, the use of the hoist was specifically covered by the agreement and the Court of Civil Appeals pointed out that the agreement provided for “indemnity from all suits — that may be brought against a contractor for any injury or death to any person or persons, or damage to property that may result from the use of said equipment or hoist by the subcontractor or its employees.” The Court of Civil Appeals correctly held that the parties to the agreement intended that the indemnity agreement should cover any and all injuries occasioned by the use of the hoist whether due to the prime contractor’s negligence or not.

One further Texas case should be here noticed. The petitioner places much emphasis upon Westinghouse Electric Corporation v. Childs-Bellows, Tex.Civ.App., 352 S.W.2d 806, wr. ref. In Childs-Bellows it was held that the particular injury sustained was not covered by the indemnity agreement. In result it differs from the three cases above discussed. The contract containing the indemnity agreement was executed by Childs-Bellows as the prime contractor and Westinghouse as the subcontractor. The subcontractor agreed to indemnify and save harmless the prime contractor “from and against any and all loss, claim, demand, and suit for damage, including death and personal injury, growing out of, or incident to or resulting from the performance, or failure to perform the work or the provisions of this Subcontract.” (Emphasis supplied) The subcontract related to the installation of elevators by Westinghouse in a building which was being constructed by Childs-Bellows. Two Westinghouse employees were injured by being struck by objects carelessly dropped by the employees of Childs-Bellows. Such employees of Childs-Bellows were not engaged in the performance of the work covered by the subcontract, — the installation of elevators, — but were engaged in construction work for the prime contractor. The Court of Civil Appeals said:

“In the instant case, however, in view of the provisions of the indemnity agreement, it is clear that indemnity was intended to extend only to injuries to persons growing out of or incident to or resulting from performance, or the failure to perform, on the part of Westinghouse, the work of installing the elevators. The agreement does not show an intent by the parties to indemnify Childs-Bellows for injuries to persons resulting from work which was under the exclusive jurisdiction of Childs-Bellows as general contractor. The injuries sustained by tlie Westinghouse employees were not injuries growing out of any work undertaken by Westinghouse but, according to the stipulations, were due solely to negligence of employees of the general contractor, Childs-Bellows, in work which in so far as the stipulations show had no connection whatever with the installation of the elevators, and work with which Westinghouse had no connection.”

In speaking of Friedman, Diamond Brick and Mobley, the petitioner says that:

“The rationale of these decisions is that generally it ought not to be presumed a contracting party will take on the harsh burden of the other party’s negligence unless he so expresses himself unequivocally. Nevertheless, when a specific operation is dealt with and described and one undertakes to indemnify against loss from its use, it is not too great a strain upon the presumed intention of the parties to include all occurrences from that device or instrumentality within the agreement. The matter is one of degree.”

It is then urged that the injury received' by Cummings did not arise from work called for by the contract. While the petitioner recognizes that the contract provided that Spence & Howe shall “furnish labor, supervision and equipment and drive piling for six propane tanks,” and that Gulf’s operator necessarily must have received orders and signals from the employees and agents of Spence & Howe as to the crane’s operations, nevertheless, in legal effect, there were two operations going on simultaneously — one being conducted by Gulf with its crane and operator and another by Spence & Howe, consisting of setting piling in place, etc. It is urged that:

“At the time of his injury, Mr. Cummings was up on the leads, a part of the pile driving equipment furnished by Respondent. His hand was caught between portions of such equipment and' mashed as the result of negligence upon the part of Respondent’s operator, such operator having failed to keep a proper lookout for his safety. Unless, therefore, there was no evidence in the record to support the implied finding of the trial court that the injury did not arise from work to be performed by Petitioner, the decision of the Court of Civil Appeals is mani- ' festly wrong.”

In our opinion the contract and the operations conducted in pursuance thereof cannot be so divided as to make two operations, one conducted by Gulf and the other by Spence & Howe. Under the contract Spence & Howe agreed to “furnish labor, supervision and equipment and drive piling for six propane tanks.” This was the work or operation covered by the con-. tract. It constituted but one piece of work and the fact that Spence & Howe made use of Gulf equipment and a Gulf employee operator did not alter the situation.

This case is clearly distinguishable from Childs-Ballows in which' the actions resulting in injury, — the dropping of heavy items of material upon the Westinghouse employees, — was in no way related to the installation of elevators called for by the Westinghouse contract. In the present case, Cummings was injured as a result of an action directly connected with and growing out of the operations covered by the contract of which the indemnity agreement was a part.

If the contract be construed as covering one operation or piece of work, we think the wording of the indemnity clause clearly embraced the situation which now concerns us. While the indemnity clause appearing in the first portion of the contract wherein Spence & Howe “assume liábility for doing or failing to do anything that may result in damage, injury or harm” might possibly be construed to apply only to the acts or omissions of Spence & Howe, Metropolitan Paving Co. v. Gordon Herkenhoff & Associates, 66 N.M. 41, 341 P.2d 460, the provision set forth in the instructions and conditions of the contract cannot be so construed. As above pointed out, Spence & Howe in this portion of the contract agreed “to be responsible for and to indemnify and save Gulf harmless from all loss or damage and any or all claims arising by reason of accidents, injuries or damage to any persons or property in connection with such work.”

This phrase clearly means that Spence & Howe assumed liability for any and all damages growing out of the work covered by the contract, — namely the setting of piling for six propane tanks.

The clause appearing in the forepart of the contract did not operate to limit the coverage of the second indemnity clause, although it might have been redundant or even unnecessary to the contract. We cannot read clearly stated provisions out of a contract to which the parties have agreed.

The general rules relating to the construction of contracts are applicable to indemnity contracts. We agree with the statement of the Court of Civil Appeals that, “In construing contracts we must seek the intention of the 'parties from the language used in the contract. All of the language used is to be considered. Too, consideration may be given to the subject matter of the contract and the surrounding facts and circumstances, not for the purposes of varying or adding to the contract but in order to find out the intention with which words are used.” When this rule is applied to the factual situation before us, it seems certain that Spence & Howe, as the supervising authority of the work, assumed liability for any and all accidents which might occur in connection therewith. And, this is true whether or not we consider the installation of piling for six propane tanks as a specific operation and somewhat similar to a specific device. A contract relating to a specific device such as an elevator or hoist, or a specific operation such as raising bricks or other building materials generally, present instances where an intention on the part of one contracting party to indemnify the opposite party for the results of his negligence is readily discernible. However, in construing a contract, all of its provisions must be considered in arriving at its meaning. In the Diamond Brick case, for example, whether the operation of the spur track be considered a specific device or operation or not, the result would be the same insofar as the construction of the contract is concerned for, as pointed out in the opinion, the contract would be meaningless unless it were construed to encompass the railroad’s negligence in maintaining its trains over the same.

Indemnity contracts involving the negligence of one of the contracting parties may present troublesome problems of construction. But, as is the case of all contract problems, difficulties may be avoided by the use of definite specific language stating whether or not the negligence of one of the contracting parties is embraced within the indemnity provisions. However, insofar as the agreement before us is concerned, we have no difficulty in saying that the Court of Civil Appeals was correct in holding that the negligence of Gulf was encompassed by the indemnity provisions of the contract. Ohio Oil Company v. Smith, Tex.Sup.Ct, 365 S.W.2d 621, Metropolitan Paving Co. v. Gordon Herkenhoff & Associates, 66 N.M. 41, 341 P.2d 460; Northern States Company v. A. Finkl & Sons Co., 8 Ill.App. 419, 132 N.E.2d 59; Bounougias v. Republic Steel Corporation, 7 Cir., 277 F.2d 726; Stern v. Larocca, 49 N.J.Super. 496, 140 A.2d 403.

The judgment of the Court of Civil Appeals is affirmed.