specially concurring.
I concur in the result reached by the majority opinion but disagree with the rationale. In my view, the majority confuses a rule of construction (which is applied by the judge) with the rule of substantive law, which makes the question of the patties’ intent one for the jury to be determined from all the facts.
Where the language of an agreement is ambiguous or fails altogether to deal with the particular matter which forms the basis of the controversy, the intent of the parties is relevant and extrinsic evidence is admissible to establish that intent. The majority seems to hold that the application of the "rule against harshness” to the expansive language of this agreement produces such an unreasonable result that, as a matter of law, it cannot be construed to require indemnity and that more precise (extrinsic) evidence of intent is required. This approach would make the determination one for the jury. As applied, therefore, the rule against harshness in effect creates an ambiguity in language that is otherwise broad enough to cover the situation.
It seems to me that such an approach is at odds with that taken in Layman and Morrison-Knudsen.1 In both of those cases, the court itself balanced the Layman factors, ruled as a matter of law on the parties’ "intent,” and construed the contract accordingly. In neither case is there any discussion of facts surrounding the making of the contract nor of any statements either party may have made on the subject. The "rule against harshness” does not judicially induce ambiguity in the language of an agreement. It states that, where the absence of control and profit versus damages elements discussed in the lead opinion are present, courts will not read an otherwise broadly drafted *559agreement to require indemnification absent express language to the contrary in the agreement. The fact that we are dealing with third-party negligence as opposed to that of the indemnitee does not justify a different approach. Accord: Parks v. Western Washingon Fair Association, 15 Wash App 852, 553 P2d 459 (1976) (had parties intended snow cone concessionaire to indemnify fair association for injuries to patrons caused by negligence of concessionaire’s customers, agreement should have spelled it out); Sun Oil Co. v. Renshaw Well Service, Inc., 571 SW2d 64 (Tex Ct App 1978).
As I interpret the approach taken in Layman and Morrison-Knudsen, this court should construe the contracts against defendant and deny indemnity as a matter of law, rather than examining the facts and determining that no reasonable jury could find that the parties intended that Cannon was not to be bound under the facts, as the majority opinion now holds. As I read Layman and Morrison-Knudsen this is never a jury question.
Southern Pac. Co. v. Layman, 173 Or 275, 145 P2d 295 (1944); So. Pac. Co. v. Morrison-Knudsen Co., 216 Or 398, 338 P2d 665 (1959).