New River Crushed Stone, Inc. v. Austin Powder Co. , 24 N.C. App. 285 ( 1974 )

210 S.E.2d 285 (1974) 24 N.C. App. 285

NEW RIVER CRUSHED STONE, INC.
v.
AUSTIN POWDER COMPANY

No. 7424SC830.

Court of Appeals of North Carolina.

December 18, 1974.

Finger & Greene by C. Banks Finger, Boone, for plaintiff appellant.

Larry S. Moore and John S. Willardson, North Wilkesboro, for defendant appellee.

HEDRICK, Judge.

A careful review of the record in the instant case reveals that plaintiff and defendant are in agreement as to the execution of the "Service Agreement" by them on 10 November 1972. Therefore, the one question for resolution on this appeal is whether the "Service Agreement" bars plaintiff's claim as a matter of law. G.S. § 1A-1, Rule 56(c), Rules of Civil Procedure.

Initially, plaintiff contends that the "Service Agreement" violates public policy. While an indemnity contract which purports to relieve the indemnitee from liability for its own negligence or the negligence of its employees is not favored by the law and will be strictly construed, such an indemnity provision is not against public policy where, as in the case at bar, the contract is private and the interest of the public is not involved and where there is no gross inequality in bargaining power. Railway Co. v. Werner, Ind., 209 S.E.2d 734 (filed North Carolina Supreme Court 21 November 1974); Gibbs v. Light Co., 265 N.C. 459, 144 S.E.2d 393 (1965); Hall v. Refining Co., 242 N.C. 707, 89 S.E.2d 396 (1955). No rights of third parties are involved in the instant case, and the plaintiff was under no obligation or compulsion to take advantage of the service which the defendant offered to its customers free of charge. By entering into the "Service Agreement", the plaintiff clearly accepted the conditions defendant annexed to its offer. We, therefore, find this argument to be without merit.

Plaintiff further contends that even if the contract is not against public policy it must be strictly construed, and in the absence of explicit language the court will not relieve the indemnitee from liability for its own negligence or the negligent conduct of its employees. This argument is not convincing. When the express provisions of the "Service Agreement" are read in light of the circumstances surrounding its execution, Hill v. Freight Carriers Corp., 235 N.C. 705, 71 S.E.2d 133 (1952), we are of the opinion that the contract was clearly intended to cover a claim by the plaintiff for damages resulting from the use by plaintiff of defendant's employees on plaintiff's premises pursuant to the "Service Agreement", whether the damage resulted from the negligence of defendant's employees or otherwise. Due to the limited nature of the "Service Agreement", we cannot conceive how the parties could have intended otherwise. The language in the "Service Agreement" is clear and unambiguous and will be taken and understood in its plain, ordinary and popular sense. Railway Co. v. Werner, Ind., supra; Weyerhaeuser Co. v. Light Co., 257 N.C. 717, 127 S.E.2d 539 (1962).

Furthermore, the "Service Agreement" specifically provides that for all intents and purposes the defendant's employees will be considered the employees of the plaintiff while they are assisting the plaintiff and that they will be subject to the plaintiff's control and supervision. There being no rights of third parties involved, the employees of the defendant were therefore the employees of the plaintiff on 28 March 1973 and their acts were the acts of the plaintiff and not the defendant. See Fralin v. American Cyanamid Company, 239 F.Supp. 178 (W.D.Va.1965); Oregon Portland C. Co. v. E. I. DuPont De Nemours & Co., 118 F.Supp. 603 (D.Or.1953); Powder Company v. Campbell, 156 Md. 346, 144 A. 510 (1929).

For the foregoing reasons, the judgment appealed from is

Affirmed.

BRITT and MARTIN, JJ., concur.