No. 12501 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1973 

BOYCE R. BALLARD, 

Plaintiff and Appellant, 

-vs - 

VOLLSTEDT KERR LUMBER COMPANY, et al., 

Defendants and Respondents. 

Appeal from: District Court of the Fourteenth Judicial District, 

Honorable Nat Allen, Judge presiding. 

Counsel of Record: 

For Appellant : 

Larsen and Gliko, Great Falls, Montana 

David V. Gliko argued, and Dirk H. Larsen appeared, 

Great Falls, Montana 

For Respondents: 

Alexander, Kuenning and Miller, Great Falls, Montana 

Neil E. Ugrin argued, Great Falls, Montana 

Submitted: September 14, 1973 

Decided : DEC 18 1& 

Filed : D~C 1 1m 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This is an appeal from a summary judgment for defendants 

entered in the district court of the fourteenth judicial district, 

Meagher County. Plaintiff Boyce R, Ballard brought the action to 

recover damages for personal injuries received as a result of 

alleged negligence of defendants Vollstedt Kerr Lumber Company 

and Yamhill Lumber Co. 

Defendants operated a saw mill at White Sulphur Springs, 

Montana. In 1968 plaintiff entered into a contract with defendants 

to haul logs to the White Sulphur Springs mill. In the logging 

contract, several paragraphs are provided protecting the logging 

operations including fire losses; and, paragraph 11 specifically 

provides for "liability insurance" with specified limits to be 

carried by the logger, and provides in part: 

"It is hereby understood and agreed that the 

Logger shall at all times hold the Vollstedt Kerr 

Lumber Co., V.K.V. Lumber Co. and the Yamhill 

Lumber Co. harmless, free and clear from any claims 

or responsibilities regarding any employee of the 

Logger from Bodily Injury and/or death and damage 

to property. * * *" 

Paragraph 13 of the contract reads: 

"~iens and Claims. Logger expressly a rees to 7 indemnify and save Company and Company s property 

harmless of and from any and all debts, dues, 

claims, demands, liens, charges or damages arising 

out of or connected with logger's operations under 

this contract which may be asserted by any person, 

association, corporation, federal government or 

any agency thereof. I' 

Plaintiff alleged: that after unloading a load of logs 

he used an electric hoist to lift the unloaded trailer on to his 

truck, prior to his return to the timber for another load of logs; 

that the hoist failed to stop causing the trailer bunk to fall 

from the trailer striking him and causing him serious, painful 

and permanent injuries; that the electric hoist was owned, controlled and serviced by defendants; and it was used by plaintiff 

at defendants' request. Plaintiff was an independent contractor 

under the provisions of the logging contract. 
We note here, in considering the district court's summary 

judgment, that plaintiff's allegation of a previous malfunction 

of the hoist is inserted for the first time as an issue on appeal. 

No such allegation appears in plaintiff's complaint. 

Plaintiff received no workmen's compensation because he was 

considered an "independent contractor" and not an "employee1' or 

11 workman" entitled to benefits under Montana's workmen's Compensation Act. 

The sole issue on appeal is whether the indemnity clause, 

heretofore quoted, provides indemnification to the logger as against 

the company? 

Plaintiff argues that under the provisions of the contract 

defendants seek to limit liability for their own negligent acts. 

He contends that under recent decisions of this Court defendants 

cannot do so and cites in support: Western Construction Co. v. 

~osby's Inc., 146 Mont. 313, 406 P.2d 165; Lesofski v. Ravalli Co. 

Elec. Coop., 151 Mont. 104, 439 P.2d 370. 

Plaintiff, recognizing there is a diversity of opinion on 

the issue and his position is a minority position, relies heavily 

on the California case of Vinnell Company v. Pacific Electric 

Railway Co., 52 C.2d 411, 340 P.2d 604, 607, 608. There, the court 

was called upon to consider a contract which purported to indemnify 

a party for his own negligent acts. The language of that contract 

was similar to that of the contract involved here. The court 

found the language did not save the indemnitee from liability for 

damages resulting from its own negligence, and said: 

"'1n the overwhelming majority of the cases the 

result reached by their interpretational efforts 

can be condensed into the simple rule that where 

the parties fail to refer expressly to negligence 

in their contract such failure evidences the 

parties' intention not to provide for indemnity 

for the indemnitee's negligent act.' 

"[Ilf an indemnitor such as the plaintiff is to be 

made responsible for the negligent acts of an indemnitee 

over whose conduct it has no control, the language imposing such liability should do so expressly and 
unequivocally so that the contracting party is advised 

in definite terms of the liability to which it is exposed. The indemnification clause in the present 

case, by not expressly stating that the defendant was 

protected against acts of its own negligence, failed 

to meet this requirement. I I 

Vinnell was followed by three cases: Markley v. Beagle, 

59 Cal.Rptr. 809, 429 P.2d 129; Goldman v. Ecco-Phoenix Elec. 

Corp., 41 Cal.Rptr. 73, 396 P.2d 377; Price v. Shell Oil Company, 

85 Cal.Rptr. 178, 466 P.2d 722. All three cases limit the strict 

construction rule sought by plaintiff to affirmative acts of 

negligence. Here, plaintiff alleged no affirmative act of negligence by defendants, therefore the cases are not applicable. Couple 

this with the language quoted heretofore from paragraph 11 of the 

contract, and the language is clear and explicit. 

Plaintiff argues that in the recent case of Western 

Construction Co. v. ~osby's, Inc., 146 Mont. 313, 406 P.2d 165, 

11 the indemnity agreement specifically and expressly named the 

lessor as a party to be indemnified from liability for actions 

arising out of the use of the defective equipment; therefore, 

the lessor was held to be validly indemnified since the indemnity 

agreement complied with the rule that * * 9~ 'the law does not 

favor one who endeavors to indemnify himself against his own 

negligence, and a provision in an instrument to do so will be 

strictly construed against the party relying upon it."' Plaintiff 

in basing his arguemnt on the above language of Western Construction Co. either misreads or misunderstands that decision. A 

careful reading of the case shows that the quoted language is 

from a California case (City of Oakland v. Oakland Unified School 

Dist. of Alameda County, 141 Cal.App.2d 733, 297 P.2d 752) and 

the holding in that case was expressly rejected by this Court in 

Western Construction Co. 

Plaintiff cannot successfully compare the fact situation here 

with Western Construction Co. There the indemnity clause specifically refers to an action arising out of the use of defective 

equipment, and the only contract between the indemnitee and in- 
demnitor involved the use of a single piece of equipment, a 

hoisting tower. In the instant case, we have a logging contract 

which involved a complex relationship between the logger and the 

company giving rise to an indeterminable number of possible 

situations which could give rise to potential claims, demands 

or liability. The very language of the indemnity clause was 

intended to be broad enough to protect the company from all of 

I I them, as long as they involved acts connected with ~ogger's 

operations". 

The judgment of the district court is affirmed. 

,Justice 

Justices.