{
  "id": 1581509,
  "name": "Raymond Jeschke, Plaintiff, v. Mercury Builders, Inc., Defendant; Mercury Builders, Inc., Third-Party Plaintiff-Appellee, v. Brule Incinerator Corporation, Third-Party Defendant-Appellant",
  "name_abbreviation": "Jeschke v. Mercury Builders, Inc.",
  "decision_date": "1970-03-25",
  "docket_number": "Gen. No. 52,085",
  "first_page": "461",
  "last_page": "466",
  "citations": [
    {
      "type": "official",
      "cite": "122 Ill. App. 2d 461"
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  "court": {
    "name_abbreviation": "Ill. App. Ct.",
    "id": 8837,
    "name": "Illinois Appellate Court"
  },
  "jurisdiction": {
    "id": 29,
    "name_long": "Illinois",
    "name": "Ill."
  },
  "cites_to": [
    {
      "cite": "195 NE2d 240",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1963,
      "opinion_index": 0
    },
    {
      "cite": "45 Ill App2d 231",
      "category": "reporters:state",
      "reporter": "Ill. App. 2d",
      "case_ids": [
        5240925
      ],
      "year": 1963,
      "opinion_index": 0,
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        "/ill-app-2d/45/0231-01"
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    {
      "cite": "70 NE2d 604",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1946,
      "opinion_index": 0
    },
    {
      "cite": "395 Ill 429",
      "category": "reporters:state",
      "reporter": "Ill.",
      "case_ids": [
        2468703
      ],
      "year": 1946,
      "opinion_index": 0,
      "case_paths": [
        "/ill/395/0429-01"
      ]
    },
    {
      "cite": "165 NE2d 286",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1960,
      "opinion_index": 0
    },
    {
      "cite": "18 Ill2d 538",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        5327764
      ],
      "year": 1960,
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/18/0538-01"
      ]
    },
    {
      "cite": "247 NE2d 886",
      "category": "reporters:state_regional",
      "reporter": "N.E.2d",
      "year": 1969,
      "opinion_index": 0
    },
    {
      "cite": "42 Ill2d 362",
      "category": "reporters:state",
      "reporter": "Ill. 2d",
      "case_ids": [
        2848905
      ],
      "year": 1969,
      "opinion_index": 0,
      "case_paths": [
        "/ill-2d/42/0362-01"
      ]
    }
  ],
  "analysis": {
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    "char_count": 6828,
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    "simhash": "1:0eeed924b6fe69ed",
    "word_count": 1064
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  "last_updated": "2023-07-14T21:02:54.032479+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Raymond Jeschke, Plaintiff, v. Mercury Builders, Inc., Defendant. Mercury Builders, Inc., Third-Party Plaintiff-Appellee, v. Brule Incinerator Corporation, Third-Party Defendant-Appellant."
    ],
    "opinions": [
      {
        "text": "MR. PRESIDING JUSTICE STAMOS\ndelivered the opinion of the court.\nThird-party defendant Brule Incinerator Corporation appeals from a judgment entered on the pleadings granting third-party plaintiff Mercury Builders indemnification for damages awarded in the primary suit amounting to $4,500, plus attorneys\u2019 fees and costs.\nMercury, as general contractor for the Chicago Housing Authority on a construction job, subcontracted installation of incinerators and boiler stacks to Brule. The pertinent provision of the subcontract provides:\n\u201cArticle 9: The Subcontractor hereby agrees to indemnify and deem harmless the Contractor against all liability, claims, judgments or demands for damages arising from accidents to persons or property occasioned by the Subcontractor, his agents or employees, and against all claims or demands for damages arising from accidents to the Subcontractor, his agents or employees, whether occasioned by said Subcontractor or his employees or by agents or employees of agents; and the said Subcontractor will defend any and all suits that may be brought against the Contractor on account of any such accidents and will reimburse the Contractor for any expenditures that said Contractor may make by reason of such accidents.\u201d\nPlaintiff Raymond Jeschke was an employee of Brule and was engaged on the work under the Mercury-Brule subcontract. On March 21, 1963, plaintiff was loading materials and tools onto a material hoist at the job site when the operator caused the hoist to move abruptly. Plaintiff stumbled and struck his knee against a protruding bolt on the frame of the hoist causing injury. The hoist had been rented and erected by Mercury and the operator was an employee of Mercury who filed a third-party indemnification action against Brule. Before determination of the primary cause Mercury was awarded a judgment on the pleadings against Brule as to liability. Subsequently, judgment was entered for plaintiff against Mercury for $4,500. Judgment was then entered in favor of Mercury on its third-party claim against Brule for $4,500, plus attorneys\u2019 fees and costs. Brule appeals.\nBrule maintains that the trial court erred in granting Mercury a judgment on the pleadings based upon the express indemnity provisions of the subcontract. It is Brule\u2019s contention that the provision does not evince an intention to indemnify Mercury for its own negligence.\nOPINION\nIn construing an indemnification agreement the court is bound to give effect to the intention of the patries determined solely from the language used when no ambiguity exists. Schek v. Chicago Transit Authority, 42 Ill2d 362, 247 NE2d 886 (1969). A strict construction should not be adopted where to do so would reach a different result. Schiro v. W. E. Gould & Co., 18 Ill2d 538, 165 NE2d 286 (1960). Where an ambiguity does exist, the court will construe the contract most strictly against the party seeking indemnity for his own negligence. Westinghouse Elec. Elevator Co. v. LaSalle Monroe Bldg. Corp., 395 Ill 429, 70 NE2d 604 (1946). For an ambiguity to exist, the meaning of the word or words must be susceptible to more than one meaning as read in context of the entire contract.\nIn De Tienne v. S. N. Nielsen Co., 45 Ill App2d 231, 195 NE2d 240 (1963) the pertinent provision of the indemnity agreement provided:\n\u201cThe Subcontractor shall indemnify and save the Owner, Architect and General Contractor harmless against any and all claims for damages to persons, caused directly or indirectly or occasioned by the execution of the work included in this order. . . .\u201d\nThe court noted that the word \u201coccasioned\u201d has two meanings, one to cause or bring about; the other to furnish an opportunity or ground for. In determining which meaning the parties intended, the court noted that if the prior definition were applied, the phrase \u201coccasioned by the execution of the work\u201d would have no meaning, but if the latter definition were used, three levels of progressive accountability would be expressed. Since only the latter definition, that of furnishing an opportunity or ground for, gave force and effect to the words, the court concluded that the intention of the parties was to expand liability beyond claims for damages caused by the subcontractor. The facts in the present case are similar to those in De Tienne. The dispute in this case centers on the meaning of \u201cwhether occasioned by said Subcontractor or his employees or by agents or employees of agents.\u201d\n\u201cArticle 9\u201d of the subcontract encompasses two categories of accountability defined in terms of the identities of the injured parties claiming damages. The first category is \u201caccidents to persons or property\u201d; the second is \u201caccidents to the Subcontractor, his agents, or employees.\u201d The first, as conditioned by the latter, renders the Subcontractor liable for accidents to all others, not including himself or his employees, while the second designates them as a separate class. The phrase \u201coccasioned by the Subcontractor\u201d appears in both categories. It is, therefore, reasonable to assume that the parties intend both phrases to have the same meaning.\nIn both categories the level of accountability is first defined in terms of \u201call liability . . .\u201d and conditioned by the phrases \u201coccasioned by\u201d and \u201cwhether occasioned by.\u201d Since the latter category utilizes \u201cwhether\u201d in preceding \u201coccasioned by,\u201d we assume the drafters intended to differentiate the applicability of the phrases. Brule contends that the word \u201cwhether\u201d is ambiguous as a matter of law since the trial court adopted a different definition from that urged by Brule. However, Brule overlooks the fact that an ambiguous word can become unambiguous when read in context. The definition asserted by Brule, that of \u201calternatives in a statement of choice,\u201d would make the word equally applicable in the first category if used, and since the drafters must have intended a different application we believe the trial court was correct in utilizing the alternative meaning, that of \u201cwhether or not.\u201d As read in context the clause then provides, \u201call claims or demands . . . for damages from accidents to the Subcontractor, his agents or employees, \u2018whether or not\u2019 occasioned by the said Subcontractor . . . .\u201d\nThe trial court properly granted Mercury a judgment on the pleadings and the judgment is, therefore, affirmed.\nJudgment affirmed.\nDRUCKER and ENGLISH, JJ., concur.",
        "type": "majority",
        "author": "MR. PRESIDING JUSTICE STAMOS"
      }
    ],
    "attorneys": [
      "Price, Noetzel, Schlager & Burgeson, of Chicago (William J. Thomas, of counsel), for appellant.",
      "Joseph A. Bailey and Jerome H. Torshen, of Chicago, for appellee."
    ],
    "corrections": "",
    "head_matter": "Raymond Jeschke, Plaintiff, v. Mercury Builders, Inc., Defendant. Mercury Builders, Inc., Third-Party Plaintiff-Appellee, v. Brule Incinerator Corporation, Third-Party Defendant-Appellant.\nGen. No. 52,085.\nFirst District, Fourth Division.\nMarch 25, 1970.\nPrice, Noetzel, Schlager & Burgeson, of Chicago (William J. Thomas, of counsel), for appellant.\nJoseph A. Bailey and Jerome H. Torshen, of Chicago, for appellee."
  },
  "file_name": "0461-02",
  "first_page_order": 467,
  "last_page_order": 472
}