{ "id": 2848387, "name": "METROPOLITAN PAVING COMPANY, Inc., a Corporation, Defendant-Appellant, v. GORDON HERKENHOFF & ASSOCIATES, INC., Third-Party Defendants-Appellees", "name_abbreviation": "Metropolitan Paving Co. v. Gordon Herkenhoff & Associates, Inc.", "decision_date": "1959-07-08", "docket_number": "No. 6494", "first_page": "41", "last_page": "48", "citations": [ { "type": "official", "cite": "66 N.M. 41" }, { "type": "parallel", "cite": "341 P.2d 460" } ], "court": { "name_abbreviation": "N.M.", "id": 8835, "name": "Supreme Court of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "129 F.Supp. 335", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4257947 ], "opinion_index": 0, "case_paths": [ "/f-supp/129/0335-01" ] }, { "cite": "202 F.2d 861", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1274616 ], "opinion_index": 0, "case_paths": [ "/f2d/202/0861-01" ] }, { "cite": "131 F.Supp. 478", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4259197 ], "opinion_index": 0, "case_paths": [ "/f-supp/131/0478-01" ] }, { "cite": "282 S.W.2d 290", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10179668 ], "opinion_index": 0, "case_paths": [ "/sw2d/282/0290-01" ] }, { "cite": "24 F.2d 347", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1713645 ], "opinion_index": 0, "case_paths": [ "/f2d/24/0347-01" ] }, { "cite": "89 N.E.2d 415", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "339 Ill.App. 168", "category": "reporters:state", "reporter": "Ill. App.", "case_ids": [ 5011211 ], "opinion_index": 0, "case_paths": [ "/ill-app/339/0168-01" ] }, { "cite": "309 S.W.2d 176", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10162243 ], "pin_cites": [ { "page": "177" } ], "opinion_index": 0, "case_paths": [ "/sw2d/309/0176-01" ] }, { "cite": "124 F.Supp. 470", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 5915088 ], "opinion_index": 0, "case_paths": [ "/f-supp/124/0470-01" ] }, { "cite": "71 P.2d 75", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "22 Cal.App.2d 87", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 2363708 ], "opinion_index": 0, "case_paths": [ "/cal-app-2d/22/0087-01" ] }, { "cite": "300 F. 411", "category": "reporters:federal", "reporter": "F.", "case_ids": [ 3645872 ], "pin_cites": [ { "page": "412, 413" } ], "opinion_index": 0, "case_paths": [ "/f/300/0411-01" ] }, { "cite": "175 A.L.R. 1", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 0 }, { "cite": "182 P.2d 18", "category": "reporters:state_regional", "reporter": "P.2d", "pin_cites": [ { "page": "20" } ], "opinion_index": 0 }, { "cite": "27 Wash.2d 901", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 2520563 ], "opinion_index": 0, "case_paths": [ "/wash-2d/27/0901-01" ] }, { "cite": "140 A.2d 403", "category": "reporters:state_regional", "reporter": "A.2d", "opinion_index": 0 }, { "cite": "49 N.J.Super. 496", "category": "reporters:state", "reporter": "N.J. Super.", "case_ids": [ 438829 ], "opinion_index": 0, "case_paths": [ "/nj-super/49/0496-01" ] }, { "cite": "131 A.2d 877", "category": "reporters:state_regional", "reporter": "A.2d", "case_ids": [ 8127742 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/a2d/131/0877-01" ] }, { "cite": "11 L.R.A.,N.S., 1173", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 1 }, { "cite": "66 A. 553", "category": "reporters:state_regional", "reporter": "A.", "pin_cites": [ { "page": "555" } ], "opinion_index": 1 }, { "cite": "217 Pa. 252", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 953727 ], "opinion_index": 1, "case_paths": [ "/pa/217/0252-01" ] }, { "cite": "224 N.W. 743", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 1 }, { "cite": "198 Wis. 527", "category": "reporters:state", "reporter": "Wis.", "case_ids": [ 8695232 ], "opinion_index": 1, "case_paths": [ "/wis/198/0527-01" ] }, { "cite": "173 Or. 275", "category": "reporters:state", "reporter": "Or.", "case_ids": [ 4972636 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/or/173/0275-01" ] }, { "cite": "176 N.E. 591", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "39 Ohio App. 1", "category": "reporters:state", "reporter": "Ohio App.", "case_ids": [ 1325405 ], "opinion_index": 1, "case_paths": [ "/ohio-app/39/0001-01" ] }, { "cite": "2 N.E.2d 35", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 1 }, { "cite": "271 N.Y. 36", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 6095783 ], "opinion_index": 1, "case_paths": [ "/ny/271/0036-01" ] }, { "cite": "233 Mo.App. 1218", "category": "reporters:state", "reporter": "Mo. App.", "case_ids": [ 1835789 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/mo-app/233/1218-01" ] }, { "cite": "288 N.W. 226", "category": "reporters:state_regional", "reporter": "N.W.", "opinion_index": 1 }, { "cite": "206 Minn. 193", "category": "reporters:state", "reporter": "Minn.", "case_ids": [ 239202 ], "opinion_index": 1, "case_paths": [ "/minn/206/0193-01" ] }, { "cite": "157 N.E. 540", "category": "reporters:state_regional", "reporter": "N.E.", "opinion_index": 1 }, { "cite": "260 Mass. 242", "category": "reporters:state", "reporter": "Mass.", "case_ids": [ 848636 ], "opinion_index": 1, "case_paths": [ "/mass/260/0242-01" ] }, { "cite": "175 So. 110", "category": "reporters:state_regional", "reporter": "So.", "case_ids": [ 10027103 ], "opinion_index": 1, "case_paths": [ "/so/175/0110-01" ] }, { "cite": "24 Ky.Law Rep. 2388", "category": "reporters:state", "reporter": "Ky. L. Rptr.", "opinion_index": 1 }, { "cite": "74 S.W. 216", "category": "reporters:state_regional", "reporter": "S.W.", "opinion_index": 1 }, { "cite": "124 Ky. 146", "category": "reporters:state", "reporter": "Ky.", "case_ids": [ 4452979 ], "opinion_index": 1, "case_paths": [ "/ky/124/0146-01" ] }, { "cite": "32 Ind. 199", "category": "reporters:state", "reporter": "Ind.", "case_ids": [ 850743 ], "opinion_index": 1, "case_paths": [ "/ind/32/0199-01" ] }, { "cite": "188 S.E. 57", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 1 }, { "cite": "54 Ga.App. 401", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1479060 ], "opinion_index": 1, "case_paths": [ "/ga-app/54/0401-01" ] }, { "cite": "112 A. 526", "category": "reporters:state_regional", "reporter": "A.", "opinion_index": 1 }, { "cite": "31 Del. 170", "category": "reporters:state", "reporter": "Del.", "case_ids": [ 425505 ], "opinion_index": 1, "case_paths": [ "/del/31/0170-01" ] }, { "cite": "1 W.W.Harr. 170", "category": "reporters:state", "reporter": "W.W. Harr.", "opinion_index": 1 }, { "cite": "114 P.2d 14", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 1 }, { "cite": "45 Cal.App.2d 306", "category": "reporters:state", "reporter": "Cal. App. 2d", "case_ids": [ 4484061 ], "opinion_index": 1, "case_paths": [ "/cal-app-2d/45/0306-01" ] }, { "cite": "74 F.Supp. 538", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 593846 ], "opinion_index": 1, "case_paths": [ "/f-supp/74/0538-01" ] }, { "cite": "117 F.2d 503", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 476719 ], "opinion_index": 1, "case_paths": [ "/f2d/117/0503-01" ] }, { "cite": "33 F.Supp. 859", "category": "reporters:federal", "reporter": "F. Supp.", "case_ids": [ 4188144 ], "opinion_index": 1, "case_paths": [ "/f-supp/33/0859-01" ] }, { "cite": "145 F.2d 304", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 3670932 ], "opinion_index": 1, "case_paths": [ "/f2d/145/0304-01" ] }, { "cite": "127 F.2d 128", "category": "reporters:federal", "reporter": "F.2d", "case_ids": [ 1077864 ], "opinion_index": 1, "case_paths": [ "/f2d/127/0128-01" ] }, { "cite": "175 A.L.R. 30", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "175 A.L.R. 1", "category": "reporters:specialty", "reporter": "A.L.R.", "opinion_index": 1 }, { "cite": "182 P.2d 18", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 1 }, { "cite": "27 Wash.2d 901", "category": "reporters:state", "reporter": "Wash. 2d", "case_ids": [ 2520563 ], "opinion_index": 1, "case_paths": [ "/wash-2d/27/0901-01" ] } ], "analysis": { "cardinality": 915, "char_count": 17681, "ocr_confidence": 0.697, "pagerank": { "raw": 4.615379240055887e-07, "percentile": 0.9263412654560169 }, "sha256": "dae366cc0f2043e9669529dc3620c3a9c2cb7778305f8fa6015959de695baa6c", "simhash": "1:0065f09214c3cde5", "word_count": 2844 }, "last_updated": "2023-07-14T18:05:25.239395+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "COMPTON, J., and GARNETT R. BURKS, District Judge, concur." ], "parties": [ "METROPOLITAN PAVING COMPANY, Inc., a Corporation, Defendant-Appellant, v. GORDON HERKENHOFF & ASSOCIATES, INC., Third-Party Defendants-Appellees." ], "opinions": [ { "text": "LUJAN, Chief Justice.\n. This is an appeal from an order of the district court granting summary judgment for third-party defendant, Gordon Herkenhoff and Associates, Inc., hereafter referred to as Herkenhoff.\nOn October 3, 1957, plaintiffs (who are not parties to this appeal) filed a complaint against the City of Santa Fe, hereinafter referred to as City and the Metropolitan Paving Company, Inc., hereinafter referred to as Metropolitan.\nThe complaint alleged that sometime prior to August 24, 1957, Metropolitan constructed a detour extending from Alameda Street in the City across the Santa Fe River over which area the City had control. The complaint further alleged that Metropolitan in constructing the detour installed two iron or steel culverts to provide a channel for water flowing down the river, which culverts were then covered with dirt fill and a black-top surface, and that the culverts were so installed as to change the channel of the river and limit its carrying capacity. The complaint went on to allege that due to the negligence of Metropolitan and the City the culverts became clogged and water which would have run down the original channel of the river had the detour not been constructed overflowed causing damage to plaintiffs\u2019 properties.\nThe answer by Metropolitan constituted, in effect, a general denial, and as affirmative defenses alleged contributory negligence and that any damage was the result of an \u201cAct of God\u201d. In addition, it alleged that if there was any negligence which caused damage to plaintiffs\u2019 properties it was negligence on the part of other agents for the City.\nThe City denied generally the allegations of plaintiffs\u2019 complaint, and as affirmative defenses alleged contributory negligence, assumption of risk and that any injury or damage to plaintiffs\u2019 properties was due to an unavoidable accident or an \u201cAct of God\u201d.\n. The City filed a cross-claim against Metropolitan alleging that it had entered into a contract with Metropolitan for the construction of a bridge across the Santa Fe River and that under the terms of this contract Metropolitan had agreed to indemnify and save the City harmless from all suits brought against the City by reason of the construction of the bridge.\nThe City also filed a third-party complaint against Herkenhoff, the engineering firm that had prepared the plans for the construction of the bridge including the detour. The City alleged that Herkenhoff had prepared the plans and in them had specified the type and size of the culverts which Metropolitan subsequently installed. The City further alleged that should it be found that the culverts called for under the Herkenhoff plans and specifications were insufficient, and such insufficiency caused the overflow, as alleged by plaintiffs, then the proximate cause of the damage was the failure of Herkenhoff to properly design the construction and Herkenhoff\u2019s failure to require culverts which would be sufficient to carry the water flowing down the Santa Fe River.\nThereafter, Metropolitan filed a counterclaim against Herkenhoff with substantially the same allegations as contained in the third-party complaint of the City.\nHerkenhoff filed a motion to dismiss the third-party complaint of the City and the counterclaim of Metropolitan, or, in the alternative, for summary judgment. Attached to and in support of this motion was an affidavit of Gordon Herkenhoff, President of Gordon Herkenhoff & Associates, Inc. The trial court granted Herkenhoff\u2019s motion for summary judgment and Metropolitan appeals therefrom.\nAccording to the affidavit executed by Herkenhoff (and the facts as stated in this affidavit have not been controverted), a contract was entered into between Metropolitan and the City on March 27, 1957, which contained certain indemnity provisions for the protection of both Herkenhoff and the City.\nThe sole question to be answered on this appeal is whether these indemnity provisions have the effect of relieving the indemnitees from liability for their own negligent acts.\nAppellant makes no argument that in a case such as this a contract which purports to indemnify a person against his own negligence is void as against public policy. However, he does urge, in effect, that a contract will not be construed as indemnifying the indemnitee against his own negligence unless the contract expressly so provides. Appellee, on the other hand, contends that the contract does not have to refer expressly to indemnitee\u2019s negligence as a prerequisite to his being held harmless for his own negligence, so long as the intention to save him harmless in such an eventuality is clear and unequivocal. With this generally accepted rule appellee has no quarrel. Nor do we. See, e. g., Princemont Const. Corp. v. Baltimore & Ohio R. Co., D.C.Mun.App., 131 A.2d 877.\nExamining- the indemnity provisions contained in the contract between Metropolitan and the City of Santa Fe, we find that one such provision is as follows:\n\u201c30. Damages. The Contractor hereby expressly binds himself to indemnify and save harmless the City and its Engineer from all suits and actions of every nature and description brought against the City or any person or persons on account of the construction of this work or by reason of any act of omission, misfeasance, malfeasance of the Contractor or his agents, subcontractors or employees.\u201d (Emphasis added.)\nFurther, Herkenhoffs affidavit states as follows:\n\u201c * * * a construction bond was entered into by Metropolitan Paving Company, Inc., as principal and Union Pacific Insurance Company of Tacoma, Washington, as surety, and made a part of the March 27, 1957 contract aforesaid, wherein said principal and surety bound themselves unto the City of Santa Fe, defendant and Third Party Plaintiff, in the penal sum of $446,634.-65 conditioned, among other things, on their defending, indemnifying, and saving harmless the' City\u2019 of Santa Fe against all damages, claims, demands, expense, and charge of every kind (including claims of patent infringement) arising out of the injury or damage to persons or property by reason of said contract and the work thereunder required of him or arising from any act, omission or neglect of said contractor (Metropolitan Paving Company, Inc.), his agents, servants, or employees with relation to said work, and conditioned further upon their delivering the work as therein specified to the City of Santa Fe, completed and free from all liens, encumbrances or claims for labor, material, or otherwise.\u201d (Emphasis added.)\nThe affidavit also states that a construction bond was required, furnished and conditioned for the protection of appellee Herkenhoff as well as other firms and persons who might be damaged by the work to be done under the contract.\nIn our opinion the all-embracing language used in the indemnity provisions clearly indicates an intention to save harmless the City and its engineer, the appellee, from all liability incurred in the prosecution of the work, even though it might arise out of their own negligence. To us this is sufficient. We do not feel that an express reference to indemnitee\u2019s negligence is necessary as a condition precedent to his being held harmless for his own negligence.\nWhile the decisions in the various jurisdictions are not entirely harmonious on this question, numerous well-reasoned cases construing indemnity provisions substantially the same as the one here involved support us in our conclusion.\nThe court stated as follows in Stern v. Larocca, 49 N.J.Super. 496, 140 A.2d 403, 407:\n\u201cBy the overwhelming weight of authority, something less than an express reference in the contract to losses from the indemnitee\u2019s negligence as indemnifiable will suffice to make them so if the intent otherwise sufficiently appears from the language and circumstances.\u201d\nThe Washington court stated this principle as follows in Griffiths v. Henry Broderick, Inc., 27 Wash.2d 901, 182 P.2d 18, 20, 175 A.L.R. 1:\n\u201cThe appellant stresses the fact that the word \u2018negligence\u2019 does not appear in the indemnity covenant, and contends that it is, therefore, manifest that the indemnity clause of the contract is equivocal. We think counsel\u2019s contention is well-answered in Payne v. National Transit Co., D.C., 300 F. 411, 412, 413. The indemnity covenant in that case read as follows: \u2018Said party of the second part does further agree to indemnify and save harmless the party of the first part from and against all claims, suits, damages, costs, losses, and expenses, in any manner resulting from or arising out of the laying, maintenance, renewal, repair, use, or existence of the said pipe (whether heretofore or hereafter laid), including the breaking of the same or the leaking of oil from the same.\u2019\u201d\n\u201cIn holding that the above covenant provided that the indemnitor should indemnify the indemnitee against the indemnitee\u2019s own negligence, the court said: \u2018It is true that the courts have said that, in order to indemnify against the indemnitee\u2019s negligence the language must be clear and unequivocal; but I do not understand that the indemnifying contract must contain express words against negligence. If it is clear from the language used, that it ivas intended to cover losses arising from the negligence of the indemnitee this is sufficient.\u2019 \u201d (Emphasis added.)\nThe court then went on to quote the following statement from Southern Pacific Co. v. Fellows, 22 Cal.App.2d 87, 71 P.2d 75, 77:\n\u201cThe indemnity clause in the contract, undertaking, as it does, to indemnify railroad company from and against \u2018any and all claims, loss, damage, injury and liability howsoever the same may be cawed, resulting directly or indirectly from work covered by this agreement,\u2019 is so sweeping and all-embracing in its terms that, although it does not contain an express stipulation indemnifying appellant against liability caused by its own negligence, it accomplishes the same purpose.\u201d\nIn the instant case the contractor expressly bound himself to save the indemnitees harmless \u201cfrom all suits and actions of every nature and description brought * * on account of the construction of this work.\u201d Perhaps the \u201cultimate\u201d unequivocal \u25a0expression, would have been to add \u201cregardless of negligence on the part of the City or its engineer.\u201d However, the better reasoned cases do not require such a phrase when, as here, the intent to cover all damages arising by reason of the construction of the work is clearly manifest. Ruddy v. New York Central Railroad Company, D.C., 124 F.Supp. 470.\nThe 1957 case of Fosson v. Ashland Oil & Refining Company, Ky., 309 S.W.2d 176, 177, involved an indemnity provision much like the one in this case. Certainly it was no broader in scope. It provided that:\n\u201cThe Contractor shall indemnify the Owner against all claims, demands, liens, taxes, loss or damages of any character suffered by the Owner and shall save the Owner harmless from all liability growing out of or incurred in the prosecution of said work or arising from any operations, acts, or omissions of the Contractor.\u201d\nIn holding that the above quoted provision clearly evinced an intention to indemnify the owner against the results of the owner\u2019s own negligence, the court stated as follows at page 178:\n\u201cUnless there was required specifically the statement \u2018including the owner\u2019s own negligence\u2019, we can hardly envision a more inclusive indemnity provision.\u201d\nIndemnity provisions substantially identical with that contained in the contract between Metropolitan and the City have been construed as indemnifying the indemnitee against his own negligence in numerous other cases. Russell, for Use of Continental Casualty Co. v. Shell Oil Company, 339 Ill.App. 168, 89 N.E.2d 415; Buckeye Cotton Oil Co. v. Louisville & N. R. Co., 6 Cir., 24 F.2d 347; James Stewart & Co. v. Mobley, Tex.Civ.App., 282 S.W.2d 290; Princemont Const. Corp. v. Baltimore & Ohio R. Co., D.C.Mun.App., 131 A.2d 877; Buffa v. General Motors Corporation, D.C., 131 F.Supp. 478; Rice v. Pennsylvania R. Co., 2 Cir., 202 F.2d 861; Fire Association of Philadelphia v. Allis Chalmers Manufacturing Company, D.C., 129 F.Supp. 335.\nIn view of what we have said above, it follows that the lower court properly granted appellee\u2019s motion for summary judgment. The judgment is therefore affirmed.\nIt is so ordered.\nCOMPTON, J., and GARNETT R. BURKS, District Judge, concur.", "type": "majority", "author": "LUJAN, Chief Justice." }, { "text": "McGHEE, Justice\n(dissenting).\nThe rule proposed by the appellant appears in 175 A.L.R. 30 and reads as follows :\n\u201cIn the overwhelming majority of the cases the result reached by their interpretational efforts can be condensed into the simple rule that where the parties fail to refer expressly to negligence in their contract such failure evidences the parties\u2019 intention not to provide for indemnity for the indemnitee\u2019s negligent acts.\u201d\nA footnote states that there are literally hundreds of cases supporting this proposition and cites the following as illustrating its universal application: Sinclair Prairie Oil Co. v. Thornley, 10 Cir., 1942, 127 F.2d 128; Southern R. Co. v. Coca Cola Bottling Co., 4 Cir., 1944, 145 F.2d 304; United States v. Hartford Accident & Indem. Co., D.C.Conn.1940, 33 F.Supp. 859, reversed on other grounds 2 Cir., 1941, 117 F.2d 503; The Zeller No. 14, D.C.N.Y.1947, 74 F.Supp. 538; Brandenburg v. Los Angeles County Flood Control Dist., 1941, 45 Cal.App.2d 306, 114 P.2d 14; Marshall v. Maryland, D. & V. R. Co., 1921, 1 W.W.Harr. 170, 31 Del. 170, 112 A. 526; Fisk Tire Co. v. Hood Coach Lines, 1936, 54 Ga.App. 401, 188 S.E. 57; Indianapolis, P. & C. R. Co. v. Brownenburg, 1869, 32 Ind. 199; Mitchell v. Southern R. Co., 1903, 124 Ky. 146, 74 S.W. 216, 24 Ky.Law Rep. 2388; Buford v. Sewerage & Water Bd., La.App.1937, 175 So. 110; New York Cent. & H. R. R. Co. v. T. Stuart & Son Co., 1927, 260 Mass. 242, 157 N.E. 540; Northern Pac. R. Co. v. Thornton Bros. Co., 1939, 206 Minn. 193, 288 N.W. 226; Central Surety & Ins. Corp. v. Hinton, 1939, 233 Mo.App. 1218, 130 S.W.2d 235; ThompsonStarrett Co. v. Otis Elevator Co., 1936, 271 N.Y. 36, 2 N.E.2d 35; Standard Accident Ins. Co. v. National Fire Proofing Co., 1931, 39 Ohio App. 1, 176 N.E. 591; Southern Pac. Co. v. Layman, 1944, 173 Or. 275, 145 P.2d 295; Griffiths v. Henry Broderick, Inc., 1947, 27 Wash.2d 901, 182 P.2d 18, 175 A.L.R. 1; Finkelstein v. Brant, 1929, 198 Wis. 527, 224 N.W. 743; Toronto v. Lambert, 1916, 54 Can SC 200, 33 DLR 476, Ann.Cas.1918D, 57.\nThe appellees offer a rule adopted by the majority to the effect that negligence need not be expressly referred to if the language used by the parties indicates the intention that negligence of the indemnitee is included in the agreement. The majority Seeks to bolster the adoption of the minority rule by saying the cases they cite are the \u201cbetter reasoned,\u201d but I disagree with such statement. Since there are no New Mexico cases on this point, we are free to adopt either rule. I believe the \u201cexpress negligence\u201d rule is the better reasoned and fairer one, and is much less likely to result \u25a0in dispute or litigation. There would be no interpretation problems if this rule were adopted. The question would simply be: Is the negligence of the indemnitee expressly referred to?\nThe rationale of this rule was well stated by. the court in Perry v. Payne, 1907, 217 Pa. 252, 66 A. 553, 555, 11 L.R.A.,N.S., 1173.\n\u2022 \u201cIt is contrary to experience and against \u25a0 reason that the contractors should agree to indemnify (the owner) against the negligence of himself or his. employees. It would make them insurers, and impose a liability upon .the contractors, the extent of which .'\u2022would be uncertain and indefinite, and \u2022'ientirely in the hands of (the owner). The results of such a liability might become most disastrous. * * * A single act of negligence on the part of the owner or his employees, over whom the contractors would have no restraint or control whatever, might create a liability which a lifetime of successful business could \u2018not repay. An interpretation of the bond which might give rise to such results could hardly be .regarded as reasonable or as giving effect to the intention of the parties. * * * The liability of such indemnity is so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to .assume the responsibility unless the contract puts it beyond doubt by express stipulation. No inference from words of general import can establish it. The manifest \u2022 purpose, in such cases, to indemnify against the injury which, under the circumstances, could reasonably .be apprehended only from the action of the indemnitor or his servant, is a weighty consideration in construing indemnity contracts. The circumstances surrounding the parties, the one, the owner for whom the building is to be erected, and the other, the contractor who is to construct the building and hence from whose acts injury to persons and property may be anticipated, would seem to -make the conclusion irresistible, that unless expressly stipulated in the contract, the owner is not to be indemnified against his own negligence.\u201d\n- The action of the majority in putting the burden of Herkenhoff\u2019s negligence on the Metropolitan by interpretation does not appeal to me and as above stated such is the minority rule,-and I dissent.", "type": "dissent", "author": "McGHEE, Justice" } ], "attorneys": [ "Rodey, Dickason, Sloan, Akin & Robb, Keleher & McLeod, Russell Moore, Albuquerque, for appellant.", "Howard F. Houk, Santa Fe, for appellee." ], "corrections": "", "head_matter": "341 P.2d 460\nMETROPOLITAN PAVING COMPANY, Inc., a Corporation, Defendant-Appellant, v. GORDON HERKENHOFF & ASSOCIATES, INC., Third-Party Defendants-Appellees.\nNo. 6494.\nSupreme Court of New Mexico.\nJuly 8, 1959.\nRodey, Dickason, Sloan, Akin & Robb, Keleher & McLeod, Russell Moore, Albuquerque, for appellant.\nHoward F. Houk, Santa Fe, for appellee." }, "file_name": "0041-01", "first_page_order": 65, "last_page_order": 72 }