GEORGIA, FLORIDA, ALA. TRANSP. CO., INC. v. DEATON, INC.

MERRILL, Justice.

This appeal is from a decree rendered in a declaratory judgment proceeding in which the trial court held that the lessee, appellant Georgia, Florida, Alabama Transportation Company, Inc., would be required to defend and indemnify the lessor, appellee Deaton, Inc., against all claims asserted by John F. Hudson and Norman L. Hulsey.

Georgia, Florida, Alabama Transportation Company, Inc. (hereinafter referred to as GFA) and Deaton, Inc. (hereinafter referred to as Deaton) are engaged in the truck freight business. On July 30, 1971, GFA and Deaton entered into an agreement known as Equipment Interchange Agreement (hereinafter referred to as E. L.A. or Agreement).

The purpose of an E.I.A. is to permit the lessor's fully loaded truck to be delivered to a destination where the owner has no "operating rights." The using carrier (lessee) delivers the goods to the destination where it has "operating rights" and receives payment for the delivery. The E.I.A. saves the expense of unloading and reloading, and permits the lessee (GFA) to hook its tractor to the owner's (Deaton's) trailer and move it to a destination where Deaton does not have "operating rights."

The following provision in the agreement was the one requiring construction and interpretation:

"3c Carrier liability for persons or property:

On July 30, 1970, one of the appellee's loaded trailers was picked up from their LTL terminal in Birmingham by an agent of appellant GFA. At the time the trailer was picked up, employees for both GFA and Deaton signed the trailer report pursuant to the requirements of the E.I.A. There is a specific section for the brake system, but this was not completed by either GFA or Deaton.

Late Friday afternoon, July 31, 1970, while the trailer was in GFA's terminal, a GFA maintenance man detected a defective air value on the brake system of the trailer (# 4105) and "grounded" the trailer. The maintenance man then reported this defect to the GFA terminal manager.

John F. Hudson, a GFA driver, arrived at GFA's terminal early in the morning on August 1, 1970, and received paper work instructing him to deliver trailer # 4105 to Geneva, Alabama. He connected GFA's tractor to the Deaton trailer. Hudson then left GFA's terminal traveling south. When he reached a point about halfway down the southern slope of Shades Mountain on U. S. 31, Hudson's trailer brakes failed. He continued down the hill to a point where Columbiana Road intersects with U. S. 31, and at that intersection, his truck collided with an automobile driven by Norman L. Hulsey.

Hudson and Hulsey subsequently filed actions at law against GFA and Deaton for the recovery of damages as a result of injuries received in the accident.

On November 22, 1972, appellee Deaton filed its bill for declaratory judgment seeking a declaration of its rights under the lease agreement. Named as respondents were GFA, Caton Transfer Company, Inc., John F. Hudson and Norman L. Hulsey. It was stipulated that where the word "Caton" appeared, it was one and the same corporation as GFA. Deaton sought and secured an injunction against Hudson and Hulsey staying prosecution of their suits against Deaton.

The cause was tried and a final decree entered on April 6, 1973, holding that GFA was obligated to defend, indemnify and hold harmless Deaton against the claims asserted by Hudson and Hulsey in their suits at law against Deaton. The trial court's decree included the following findings:

Appellant GFA contends that the parties did not intend for GFA to indemnify Deation, for Deaton's own negligence since the clause did not contain "talismanic" words, i. e., since it did not include the phrase "including the negligence of the indemnitee."

Our cases hold that the intention to indemnify the negligence of the indemnitee must clearly appear from the wording of the instrument, but when that intention is clear, the indemnity provisions will be read and construed so as to give them the meaning the parties have expressed. Eley v. Brunner-Lay Southern Corp., 289 Ala. 120, 266 So.2d 276; Walter L. Couse and Company v. Hardy Corporation, 49 Ala.App. 552, 274 So.2d 316, cert. denied, 290 Ala. 134, 274 So.2d 322.

We have also stated that the use of the word "negligence" is not required if the intention to afford such protection clearly appears from the contract or from the language used, the surrounding circumstances, and the purpose and objects of the parties. See Walter L. Couse and Company v. Hardy Corp., supra; Eley v. Brunner-Lay Southern Corp., supra; Republic Steel Corp. v. Payne, 272 Ala. 483, 132 So.2d 581.

In Eley, supra, the lessor of a drilling machine sought the construction of a lease. Lessor contended that the lease obligated lessee to indemnify lessor for liability allegedly resulting from the negligence of lessor in designing, maintaining and supplying the machine. This court considered various provisions in detail, including provisions by which lessee agreed that the machine was in good condition when it was received by lessee, that the lessee would provide insurance protection, and that the lessee would indemnify the lessor against all loss, damage, expense and penalty arising from the operation of the equipment during the rental period. We stated in Eley, supra:

The agreement here under consideration provides that the using carrier (GFA) agrees to defend and hold harmless the owner (Deaton) from any and all loss arising out of the using carrier's (GFA's) use, operation, maintenance or possession of the equipment.

In the present case, Deaton introduced in evidence the trailer interchange receipt:

Appellee Deaton relies chiefly on Eley v. Brunner-Lay Southern Corp., 289 Ala. 120, 266 So.2d 276. GFA apparently concedes that Eley is apt authority to support the holding of the trial court here, because it says in brief:

The "qualifications" in Couse, 290 Ala. 134, 274 So.2d 322, are contained in the last paragraph of the opinion in that case, which said:

There were no "talismanic" words in either Eley or Cause.

The Court of Civil Appeals followed Eley in Couse, 49 Ala.App. 552, 274 So.2d 316, and this court, on certiorari, denied the writ with an opinion, 290 Ala. 134, 274 So.2d 322. We do not see any conflict or qualification of our holding in Eley. The finding of the trial court was in conformity with our opinion in Eley and the two opinions in Couse.

There are a few distinctions between Couse and Eley and the instant case. In Couse, the dispute was between a contractor and a subcontractor, and this court stated that: "The indemnity provision in the instant case (Couse) lacks substantial provisions which were contained in the lease in Eley." In Couse, the contract was prepared by the contractor and, as to any ambiguity, was to be construed against the contractor. In the instant case, the contract was prepared by hundreds of trucking companies and was adopted by mutual agreement. In Couse, the property remained in the possession of the contractor. In the instant case, the custody of the property passed completely and exclusively from the control of the owner.

The agreement, § 3b(4), provides:

"3b The carrier initially acquiring use of interchange equipment: (GFA)

Here, GFA had full and complete control of the trailer from the time it took it and gave its receipt to the time of the accident. While in its custody, GFA actually took the trailer out of service. But someone, while it was in GFA's custody, let the trailer get away, and there was no evidence that the driver Hudson knew that there was a defective air valve, and he inspected the unit before he left with it. All of this time, GFA had complete control and custody of the trailer and, under the agreement, Deaton had no right to control the work of any GFA employee handling the trailer.

The decree of the trial court was in accord with prior decisions of this court.

Appellant argues that one "finding" of the court is not supported by any evidence, and "by making and relying on the erroneous finding, which is the sine qua non of the court's ruling, the court committed reversible error."

The questionable finding is the second sentence of the following paragraph in which the court was explaining the position of the parties in the final decree:

Appellant construes the sentence to mean that the court found that GFA (Caton) "was to derive the greatest benefit from" the agreement. We do not so construe the statement, and we are convinced that this was not the basis of the court's decision. To us, the sentence means merely that GFA did receive a benefit from the interchange under the agreement and that made the agreement applicable because Deaton also received a benefit. We think it is plain that the benefits were mutual, and that the trial court was not attempting to say, and did not say, that GFA derived the greatest benefit under the agreement.

Moreover, if we have not correctly interpreted the sentence in the decree, there was no reversible error regardless of which party may have derived the "greatest benefit." We have already indicated that the trial court reached the correct result.

The rule is that if the decree correctly determined the equities of the case, the reasons upon which the trial court acted are unimportant and the decree or judgment of that court will be affirmed. A correct decision will not be disturbed because the court gave a wrong or insufficient reason therefor. Cherokee County v. Cunningham, 260 Ala. 1, 68 So.2d 507; Family Land & Investment Co. v. Williams, 273 Ala. 273, 138 So.2d 696; Robinson v. Robinson, 273 Ala. 192, 136 So.2d 889.

Affirmed.

HEFLIN, C. J., and HARWOOD, MADDOX and FAULKNER, JJ., concur.