EDWARDS, Circuit Judge.
Two appeals are presented from damage awards of $10,000 each against Southern Railway Co., defendant and third-party appellant, in appeal No. 17,349, and Foote Mineral Co., third-party defendant-appellee, in appeal No. 17,350.
In the original cause of action Annie J. Brogdon sued Southern Railway Co. for negligence in causing the death of her husband Orville L. Brogdon. Brogdon was killed June 12, 1964, when he was crushed between an overhead conveyor owned by Foote and the top of a freight car owned by Southern. Brogdon was seeking to load the Southern car with Foote Mineral Co. lime. At the time he was an employee of Foote; and his widow recovered Workmen's Compensation benefits for his death against Foote.
A provision in the Tennessee Workmen's Compensation Law, TENN.CODE ANN. § 50-908 (1955), makes it the exclusive remedy against an employer for injury or death in the course of employment. Annie Brogdon's suit for damages was filed only against Southern. It alleged that Southern's negligence (including providing a car with defective brakes) was a proximate cause of her husband's death. This case was tried before a jury which awarded Annie J. Brogdon $20,000.
These appeals result from Southern's third-party action filed against Foote. Southern's principal claim was for indemnity under the terms of a written contract with Foote.
This action was tried before the United States District Judge without a jury concomitantly with the Brogdon jury trial. The District Judge awarded Southern $10,000 indemnification from Foote, holding that Southern and Foote were equally guilty of proximate negligence in causing Brogdon's death.
The District Judge's Memorandum Opinion said:
At the outset we hold that this record contains ample evidence to uphold the District Judge's finding that both Southern and Foote were equally guilty of negligence which constituted proximate causes of Brogdon's death. The evidence shows conclusively that Foote (with Southern's full knowledge) erected a conveyor without the clearance required by a Tennessee state statute. TENN.CODE ANN. §§ 65-623 — 65-230 (1955).
There is also evidence to support a finding that Foote was negligent in allowing a 17-year-old to operate the car under the facts involved and that his negligence was a proximate cause of Brogdon's death.
As to Southern, there was also evidence from which proximate negligence could be found in Southern's knowledge of prior malfunction of the brakes on the car involved in this fatality.
There remain, however, some interesting legal issues. The first concerns whether or not the exclusive remedy provision of Tennessee's Workmen's Compensation law, TENN.CODE ANN. § 50-908 (1955), not only insulates Foote, the employer, from Annie Brogdon's suit, but also bars the third-party derivative suit of Southern.
We find no case decided by the Supreme Court of Tennessee which controls our decision. But in a well-reasoned opinion the Fourth Circuit held that where the employer had expressly contracted to imdemnify a third-party, the exclusive remedy provision of Tennessee law did not serve to invalidate such a contract. We now accept and adopt the reasoning on this point of the Fourth Circuit in General Electric Co. v. Moretz, 270 F.2d 780, 789-791 (C.A.4, 1959), cert. denied, [Mason & Dixon Lines v. General Electric Company] 361 U.S. 964, 80 S.Ct. 593, 4 L.Ed.2d 545 (1960).
The last questions pertain to construction of the contract of indemnity. These provisions were contained in a switch track agreement of which paragraphs 4 and 5 provided:
In paragraph 4 of the indemnity agreement Foote undertook to save Southern harmless from any violations of the clearance agreement which required 22 foot clearance above the rail level of all structures. The language of paragraph 4, however, makes no reference to saving Southern harmless from Southern's own negligence. The majority view is that such indemnity agreements should not be extended to indemnify the indemnitee's own negligence unless the language is clear and unambiguous. Kroger Co. v. Giem, 215 Tenn. 459, 387 S.W.2d 620 (1964); General Accident Fire & Life Assurance Corp. v. Finegan & Burgess, Inc., 351 F.2d 168 (C.A. 6, 1965). It would have taken little time for a Southern Railway attorney to have added the words "including damage from indemnitee's own negligence" to the language of paragraph 4. Not finding such language (or any compelling inference), we decline to supply it.
We note without deciding Foote's claim that Southern, by knowledge and acquiescence in Foote's clearance violation, waived its rights under paragraph 4. The District Judge allowed the partial recovery which he awarded Southern
Foote in turn argues that the basic suit is against Southern and that the jury award against Southern indicates that Southern is the only negligent party. This of course, isn't necessarily true at all. The final jury award against Southern establishes that Southern's negligence was a proximate cause of Brogdon's death. But the third-party pleading filed by Southern pleads Foote's failure to follow the Tennessee statute on clearance and the negligent operation of the car by a 17-year-old employee as negligence on the part of Foote. As we have previously indicated, we believe that the evidence clearly justifies the District Judge's finding of fact that Foote was indeed equally negligent.
The judgments of the District Court in both appeals are affirmed.