(dissenting).
In this case, the fatal injury to the deceased, James Columbus Graham, Jr., occurred while he was an employee of Texas Tower and Construction Company. Graham was working on a water storage tank belonging to the City of Beaumont. He fell to his death when brackets attaching steel rods supporting him pulled away from the tank.
The respondents have recovered through a statutory wrongful death action against the City of Beaumont, and this writer concurs insofar as that result.
The work being performed by Graham, sandblasting and painting, was expressly required by the contract between Texas Tower and the City of Beaumont. The lawsuit brought by the respondents against the City alleged that the injury to Graham was a result of wrongs done by the City and Texas Tower. In answer to special issues, the jury found that the City failed to make proper inspection of the bracket assemblies and steel rods prior to the sandblasting, and that this failure was negligence and a proximate cause of Graham’s injuries. Thus the case reaches this Court with fact findings which establish the joint negligence of the City and Texas Tower as a proximate cause of Graham’s injury.
The City’s contract with Texas Tower not only included sandblasting and painting; the City also paid for and received indemnification provisions from Texas Tower. The relevant indemnification portions of the contract read as follows:
“The CONTRACTOR and his Sureties shall indemnify and save harmless the OWNER and all its officers, agents and employees from all suits, actions or claims of any character, name and description brought for or on account of any injuries or damages received or sustained by any person or persons or property, on account of any negligent act or fault of CONTRACTOR, his agents or employees, in the execution of said contract; * * * and will be required to pay any judgment, with costs, which may be obtained against the OWNER growing out of such injury or damage.”
“The CONTRACTOR agrees to fully indemnify and save the City whole and harmless from all costs, expenses and damages arising out of any real or asserted cause of action, and from any and all costs arising from wrong, injury, or damage that may be occasioned to any person or property or to his employees, arising out of his acts in connection with the construction of the said improvements, or occasioned by said CONTRACTOR, his agents, servants or employees.”
The majority opinion holds that these provisions do not evidence an intention that Texas Tower should indemnify the City for the consequenses of its own negligent conduct. Rather, this Court has construed these provisions as intending an indemnification to the City in the event *840of damages or claims resulting solely from acts or conduct of Texas Tower. As the negligence here was joint, the Court has denied the City of Beaumont indemnification from Texas Tower.
I cannot concur with this result.
This Court held in Ohio Oil Co v. Smith, 365 S.W.2d 621, 625 (Tex.Sup.1963), that:
“In this state, contracts written or construed so as to allow indemnity for liability arising out of the indemnitee’s own negligence have long been held not to be violative of the public policy.”
Hence, the only question to be considered in determining indemnification is whether or not the contract itself indemnifies the City for a judgment against it for its failure to inspect the steel rods, with resulting injury during the contractor’s activities in performing the contractual work.
The second indemnification provision, quoted in its entirety above, provides that Texas Tower shall “ * * * fully indemnify * * * the City * * * from all costs, expenses and damages arising out of any real or asserted cause of action * * * arising out of his acts in connection with the construction. * * * ”
I believe that the cost of this lawsuit against the City was intended to be within the scope of this second indemnification provision. The jury findings can be characterized as determining that the damage, Graham’s injury grew out of the activities of Texas Tower, but was a result of the wrong of the City in failing to inspect the steel rods. The wrong was the City’s failure to inspect; it was perpetrated on Graham; and his injury grew out of the activities of Texas Tower in performing the work required under the contract. The second indemnification provision specifically provides for indemnification for all costs to the City from any cause of action arising out of the contractor’s acts during the performance of the contractual work. The City is here seeking to recover from Texas Tower the cost arising out of a lawsuit filed against it for damages resulting from wrong done to the deceased in connection with Texas Tower’s performance of the contractual work. To my mind, this lawsuit is included within the term “any real or asserted cause of action” against the City, and the indemnification provision applies. In short, the first indemnification provision has already covered any liability arising from negligence of the contractor. The second provision must then necessarily be designed to protect the City against the costs of its own and third parties’ wrongs during the construction.
Prior interpretations of the law of this jurisdiction support this construction. In the Ohio Oil Co. case the contractor agreed to indemnify his employer against “all claims and damages of every kind * * * arising out of or attributed, directly or indirectly to the operations of Contractor hereunder. * * * ” In that case this Court held the contractor liable for acts resulting in injury to his own employee, even though the indemnitee’s negligence caused the injury. The Court there said: “Applying these rules to the construction of Sec. 15 [quoted above], it is clear that Ohio is entitled to indemnity from Smith even though it was Ohio’s negligence that resulted in Hunt’s injury.” 365 S.W.2d 621, 627. As in the instant case, the contractual provision in the Ohio Oil Co. case never specifically referred to negligent conduct by the indemnitee. In fact, in Ohio Oil Co. this Court particularly noted that “In owner-contractor situations judicial construction of indemnity clauses to cover the indemnitee’s negligence notwithstanding absence of an express provision to that effect in the contract has been said to be common.” 365 S.W.2d 621, 626.
Again, as the majority opinion points out, indemnification was held to lie in Houston & T. C. R. Co. v. Diamond Press Brick Co., 111 Tex. 18, 222 S.W. 204 (1920). In that case the indemnification clause provided that the contractor would save his employer “harmless from any and *841all claims for damages arising from any cause whatsoever growing out of the construction, maintenance, and operation of said spur track.” As with Ohio Oil Co., supra, this writer cannot determine that this provision differs materially from the operational indemnification clause in the instant case.
In Alamo Lumber Co. v. Warren Petroleum Corp., 316 F.2d 287 (5th Civ.1963), the court, after reviewing this State’s prior decisions, allowed indemnification against damages caused by the indemnitee’s own negligence. In that case, the provision was for indemnification “from any and all liability * * * resulting from injuries * * * while Contractor is performing the work, which arises out of or in connection with the activities of Contractor, Contractor’s servants, agents and employees.” [Emphasis added.] The “activities” of the contractor referred to in this provision appear analogous to the “acts” referred to in the indemnification provision in the instant case.
The majority opinion advises the reader to compare Humble Oil & Ref. Co. v. Wilson, 339 S.W.2d 954 (Tex.Civ.App.—Waco 1960, writ ref’d, n. r. e.) in support of denial of indemnification to the City. In that case, the contract provided for indemnification for injury “resulting from the toilful or negligent acts or omissions of Contractor’s agents, employees, representatives or subcontractors.” [Emphasis added.] The jury there found that both the indemnitor and indemnitee’s negligence proximately caused the injury; and the court denied indemnification to the indemnitee. The Humble Oil court, in denying indemnity, held that “where the indemnity is from loss resulting from the indemnitor’s ‘negligent acts or omissions,’ the dominant weight of authority establishes that the agreement does not cover loss where the indemnitee’s negligence concurs in causing the injury.” 339 S.W.2d 954, 955.
If this is sound law, it nevertheless does not meet the situation here before us, where the indemnification provisions are not restricted to claims resulting from the contractor’s own negligence. In the instant case, the first indemnification provision refers to the contractor’s negligence; the second provision, as discussed above, refers to the cost of any lawsuit for any wrong, injury or damage, irrespective of causation, if it arises out of the contractual activities.
The provision before us is nearly analogous to the provisions in the Ohio Oil Co. and Alamo Lumber Co. cases; as such, it covers the injury suffered by Graham, and the City should be indemnified for its liability. This indemnification would be part of the contract entered into and paid for by the City of Beaumont, and by granting it the Court would only be requiring Texas Tower to fulfill its obligations under this contract.
I therefore respectfully dissent as to the Court’s holding on indemnification.