(concurring).
I concur in the decision and the opinion. I also concur that the decision of Jacksonville Terminal Co. v. Railway Express Agency, Inc., 5 Cir., 1962, 296 F.2d 256, cert. denied, 369 U.S. 860, 82 S.Ct. 949, 8 L.Ed.2d 18, on this record is controlling.
But while I am bound by that decision as a holding, I am not bound by all that was said in support of it. At least I would suppose that I am no more bound' than that panel considered it was as to. the reasons expounded for the Court by me in Batson-Cook Co. v. Industrial Steel Erectors, 5 Cir., 1958, 257 F.2d 410.
What I particularly disagree with is. the lecture which this Court undertakes to give all that vast body of courts — including this very court. — who through the years had molded what was to become the majority view that “while it. need not be done in any particular language or form, unless the intention is-unequivocally expressed in the plainest of words, the law will consider that the parties did not undertake to indemnify one against the consequences of his own negligence.” 257 F.2d 410, 412.
After first making an Erie-reading of the Florida law by which, of course, weave bound, the Court went on to reject “the majority rule” because it “rests on an unsound and dangerous foundation.” 1 296 F.2d 256, 262. Two arguments were then advanced. The first, was to decline to accept the idea that assumption of liability of losses due to another’s negligence is an “unusual” and “hazardous” undertaking. This, in turn, was based upon a supposed similarity to-obligations which compensated insurers willingly take on themselves in modern insurance policies. Amplifying that a. bit, the Court asserted a “common knowledge that the device of insuring-against one’s own negligence through indemnity contracts is frequently employed in other business ventures.” 296 F.2d 256, 262.
As to the first phase, I would have considerable doubt that parties to an ordinary commercial business construction contract may be likened to an insurance company. As to the use of the indemnity agreement as a device for risk allocation or sharing, I quite agree that it is frequently and effectively used. But in *861most instances, as is true here, the underlying insurance which insures compliance with the indemnity agreement merely guarantees compliance by the assured (the indemnitor) of whatever obligations the indemnity contract prescribes. The presence of insurance then is really question-begging: if the indemnity contract subjects the indemnitor to liability, the underwriter is also liable;2 if it does not, then the underwriter has no liability except to defend the baseless charge asserted under the indemnity agreement.3
But doubtful as is this first reason, what is even more disturbing is the second reason advanced by the Court:
“Perhaps more important, even assuming that the burden imposed on the indemnitor is ‘unusual’ or ‘hazardous’, the majority rule presumes that courts have the power to alleviate or eliminate this burden by construing the indemnity agreement in a manner which is patently inconsistent with the plain and clear meaning of the language employed by the contracting parties. This is a dangerous and unwarranted extension of the judicial function.” 296 F.2d 256, 262.
This is quite a broadside to level at all of the courts who have fashioned the majority rule. I would hardly think it a “dangerous and unwarranted extension of the judicial function” to determine just 'what it is the law considers to be “the plain and clear meaning of the language employed by the contracting parties.” I do not believe it is judicial usurpation if a given court finds the task of interpretation and application of written contract terminology to be something that is not automatically revealed. It is not abandoning the judicial role for a court to conclude that the answer is not disclosed by a mechanical resort to the so-called “cardinal rule of construction” which “is to ascertain the intention of the contracting parties and to give effect to that intention if it can be done consistently with legal principles.” 296 F.2d 256, 259.
Of course this is both an artificial and generally meaningless test as everyone knows. For in the so-called quest for the intention of the parties, the last thing that is ever allowed is to make inquiry of either one or both of them. The law for policy reasons too good and too numerous to here outline prohibits ordinarily any subjective inquiry or statement. In the final analysis, the “intention” of the parties is that which the law declares the parties in that particular circumstance by that particular language must have meant to say.4
Where, for example, this Court at this late date now declares that the reasons previously advanced by the majority of *862courts for requiring an unequivocal manifestation of a purpose to take on the burdens of another’s neglect are unsound, there are many who still adhere to that view. Many other courts have applied it for years. Thus in one state a particular contract is held to satisfy that forum’s standard of specificity. In another, substantially identical language will be found wanting. Each of those courts is engaged in a proper judicial function — that of ascertaining what it is the law of that particular jurisdiction, in keeping with its traditions and policies, regards the words used to mean.
Of course the best proof of this is the ceaseless problem of interpreting virtually standard clauses of contemporary insurance policies. In many such situations, the clauses are simple in structure and terminology. Words of common everyday meaning, both to the business and legal world, are used. And yet in the hairsbreadth of the imaginary line separating one state from a contiguous one, diametrically opposite conclusions are reached in “construing” identical words. Thus, on the troublesome problem of “Who is the Insured?” and the corollary application of the standard employee exclusion clause, Louisiana answers it one way,5 while its sister States of Texas6 and Alabama7 reach an opposite result.
Obviously an insurer issuing the identical policy in Louisiana and Texas does not intend two different results. Equally obvious, a multi-state corporate assured procuring such insurance from that insurer for its nation-wide operations does not intend the coverage to be different between Texas and Louisiana. D.espite the obvious fact that very plain, simple words are used in the questioned policy clause, it could hardly be said that merely because divergent results are reached, one of the two courts is “construing the * * * agreement in a manner which is patently inconsistent with the plain and clear meaning of the language employed by the contracting parties” so that it is engaged in the “dangerous and unwarranted extension of the judicial function.” 296 F.2d 256, 262.
Each forum has its own reasons, either good or bad, for reading the supposed intention of parties in a uniform contract in a contrary way. The sharp disagreement between the conflicting-courts, and even among the Judges of the same courts,8 and the criticism of writers in professional journals demonstrate that even out of plain, everyday, simple English words of common usage, a judicial problem exists.9 Its resolution in *863the light of local policy considerations,10 though perhaps erroneous, is a long way from judicial usurpation.
The problem, then, is one of judicial interpretation. As with any other judicial problem, it is not avoided because the words in question are simple or plain or common. One state for perfectly good reasons may conclude that the word “all” means something less. It may, for example, believe that while such indemnity contracts are not void, it is unwise for its citizens to be exposed to almost unlimited liability11 precipitated by the negligence of the very person being indemnified unless that purpose is spelled out with positive clarity. Such a rule, if adopted, represents a state policy — a state policy which we are neither competent nor free to judge. Businessmen contracting in the light of it can protect themselves accordingly. A businessman, with or without insurance, might be willing to take on himself the liabilities of an indemnity agreement under such an interpretation. On the other hand, unless he obtains insurance or renegotiates the contract price, he might be unwilling to become a virtual, unlimited, uncompensated insurer under the other interpretation. Where this rule — one way or the other — is announced by clear state precedents, it is as much a part of the meaning of the word “all” as are the letters a-1-1.
When a state to effectuate what it considers to be good, valid state policies, puts a narrower — or a broader — interpretation on language used than might be compelled by our notion of mere literalism, I decline to say, not only that the result is erroneous, but that in reaching it the court has transgressed the judicial boundary.
To the contrary, so long as Erie stands, for us to say so may itself be “a dangerous and unwarranted extension of the judicial function,” and especially the function of the national judiciary in this area of diversity federalism.
. This admonitory lecture was subsequently repeated in Crescent Towing & Salvage Co. v. Dixilyn Drilling Corp., 5 Cir., 1962, 303 F.2d 237, 244, cert. granted, 371 U.S. 859, 83 S.Ct. 121, 9 L.Ed.2d 98, and now pending.
. Of course in the interpretation of the insurance guaranty of such indemnitee, I would be the first to acknowledge that, as should be true of all insurance, it must be read in the light of the practical business demands and risks. Jewelers Mutual Ins. Co. v. Balogh, 5 Cir., 1959, 272 F.2d 889, 892; XXVIII Ins. Counsel J. 576-584 (1961).
. The cost, inconvenience, and burden of defending a baseless claim is itself one of the persuasive business reasons for their use. Consequently, a non-negligent indemnitee does have a business need for an indemnity agreement. This factor is completely overlooked in what the Court elucidates as an additional reason given note 4, 296 F.2d 256, 263. Likewise, overlooked by the Court was the disturbing and serious procedural problem of great practical importance as to contribution or indemnity among joint tort feasors, the application of major-minor, active-passive concepts, imposition of liability without actual fault under nondelegable duties, or the like. See Travelers Ins. Co. v. Busy Electric Co., 5 Cir., 1961, 294 F.2d 139, 143 and 144, and Halliburton Co. v. Norton Drilling Co., 5 Cir., 1962, 302 F.2d 431, on rehearing 313 F. 2d 380. An express contractual indemnity agreement wipes out all of these vexing problems with the wave of a hand.
. The words of the contract are not even the starting point. We have many times pointed out that “A court called upon to determine the meaning of written contracts * * * looks primarily to the language of the contracts after first placing itself as nearly as possible in the position of the parties to them at the time of their execution.” (Emphasis sup*862plied.) Fidelity-Phenix Fire Ins. Co. v. Farm Air Service, Inc., 5 Cir., 1958, 255 F.2d 658 at 660; Indemnity Ins. Co. of North America v. Du Pont Air Interests, 5 Cir., 1961, 292 F.2d 569; United States Industries, Inc. v. Cameo, Inc., 5 Cir., 1960, 277 F.2d 292, 295-296, note 14.
. Stewart v. Liberty Mutual Ins. Co., 5 Cir., 1958, 256 F.2d 444.
. Transport Ins. Co. v. Standard Oil Co., 1959, 161 Tex. 93, 337 S.W.2d 284.
. American Fidelity & Casualty Co. v. Saint Paul Mercury Indemnity Co., 5 Cir., 1957, 248 F.2d 509; Michigan Mutual Liability Co. v. Carroll, 1961, 271 Ala. 404, 123 So.2d 920.
. See, e. g., the strong, and in my judgment, correct dissent of Justice Walker in Transport Ins. Co. v. Standard Oil Co., 1959, 161 Tex. 93, 337 S.W.2d 284, 290. Even more in point are the recent indemnity contract decisions in Ohio Oil Co. v. Smith, 1963, Tex., 365 S.W.2d 621, reversing Tex.Civ.App., 356 S.W.2d 443, and Spence & Howe Construction Co. v. Gulf Oil Corp., 1963, Tex., 365 S.W.2d 631, aff’g Tex.Civ.App., 356 S.W.2d 382. Here coordinate courts of a single system reach opposite results and the “intention” of the parties is not determined until still another agency' — the Supreme Court — speaks. Incidentally all had difficulty with the case of Westinghouse Electric Corp. v. Childs-Bellows, Tex.Civ.App., 1961, 352 S.W.2d 806, writ ref., which bears much resemblance to this Florida case.
. Oddly enough, in the illustration of a uniform, simple insurance clause which I have discussed, “Who Is ‘The Insured’ ”, Risjord and Austin, 24 University of Kansas City L.Rev. 65 (1955), undertaking as it did to demonstrate that the new “Severability of Interests” clause was *863really unnecessary to express the underwriters’ intention as recognized by court decision may have become a part of the problem. Some of its judicial statistics were questioned in American Fidelity & Casualty Co. v. St. Paul Mercury Indemnity Co., 5 Cir., 1957, 248 F.2d 509, 514, note 9. This may have led the Texas Supreme Court into its holding in Transport Insurance Co. v. Standard Oil Co. of Texas, 1959, 161 Tex. 93, 337 S.W.2d 284, at 289. This result occurred even though Justice Walker pointed out, correctly I believe, that the sev-erability clause was present in the Texas case, but not in our prior American Fidelity-St. Paul case. In the tortuous course of this problem, it may be that in divining intention as Alabama sees it, we transmuted McDowell v. United States Fidelity & Guaranty Co., 1954, 260 Ala. 412, 71 So.2d 64, from a simple cross-employee exception case of dubious relevance into the legendary white horse case when the Alabama Supreme Court three years later decided Michigan Mutual Liability Co. v. Carroll, 1961, 271 Ala. 404, 123 So.2d 920. All of this is developed in “Who Is ‘The Insured’ Revisited” Risjord and Austin, XXVIII Ins. Counsel J. 100 (1961); Brown and Ris-jord “Loading and Unloading; The Conflict Between Fortuitous Adversaries,” XXIX Ins. Counsel J. 197; see also XXVIII Ins. Counsel J. 576-584 (1961).
. The term “policy consideration” is broadly used. One such “policy” is that in the majority of states, contracts of indemnity against one’s own negligence are not void as “contrary to public policy.” 296 F.2d 256, 263, note 3.
. There is no ceiling as to persons or claims. It is more wide open than the extraordinary policy which this Court declined to enforce even against a compensated insurer. See Navigazione Alta Italia v. Columbia Casualty Co. (dissenting), 5 Cir., 1958, 256 F.2d 26, 29, 1958 A.M.C. 1099.