(concurring).
I concur in the judgment of reversal and remand but do not agree with the Court’s construction of the indemnity agreement. The holding in Joe Adams & Son v. Mc-Cann Construction Co., Tex.Sup., 475 S. W.2d 721, is quite narrow. This was recognized in the first dissenting opinion in that case, where it was pointed out that “the majority opinion carefully limits its holding to situations in which the indemnitee’s negligence is the sole cause of the injuries.” It seems quite strange then that those who protested the McCann holding so vigorously should now extend the same to its extreme limits and so deprive many indemnity agreements of the meaning and effect intended by the parties.
The majority holding is based on the rule, reiterated in McCann, that an indemnity agreement will not protect the indemnitee against the consequences of his own negligence unless the obligation is expressed in unequivocal terms. This rule is ordinarily applied and serves a useful purpose in cases where the active or primary negligence of the indemnitee was either the sole or a concurrent cause of the injuries or damage. It is not generally recognized, and has no place, in a case where the in-demnitee has been guilty of only passive negligence in failing to discover, or warn of, or protect against, a hazard resulting from the active or primary negligence of the indemnitor. Any reliance on the rule in a case of that nature will produce particularly harsh and unjust results when the negligence of the indemnitor constitutes a violation of some duty owing not only to the injured third person but also to the in-demnitee. See Annotation, 27 A.L.R.2d 663, 737 et seq.; 41 Am.Jur.2d Indemnity § 15 et seq.
The distinction just mentioned is not always articulated by the courts, • but it becomes apparent when their decisions are compared. For example, the New York Court of Appeals recognizes the rule that “contracts will not be construed to indemnify a person against his own negligence unless such intention is expressed in unequivocal terms.” Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 2 N.E.2d 35. The rule was not even mentioned, however, in an opinion dealing with an obligation of a contractor to indemnify the owner against liability for injury or damage done by the contractor “in the course of the performance by him of this agreement or otherwise, whether by negligence or otherwise.” Dudar v. Milef Realty Corp., 258 N.Y. 415, 180 N.E. 102. In holding that the owner was entitled to indemnity under the facts of that case, the court reasoned:
Here liability of the defendant owner and general contractor arises from its failure to protect the plaintiff adequately from the danger which might reasonably be apprehended from the operation of the hod hoist. It did not participate in the negligent operation of the hoist. Its own negligence was, at most, passive in failing to take more precautions against such operation. In the absence of a contractual obligation by the operator of the hod hoist, assuming sole responsibility for the results of its own negligence, the question *563of ultimate liability as between the two defendants might be debatable .... Here the contractor did by express agreement assume such responsibility.
. Enough that the contractor’s obligation plainly covers injuries caused by the contractor’s negligence in which the owner did not participate, and where the owner’s negligence, if any, was only passive and in the performance of a duty owed, not to the contractor, but to the injured party.
The importance of the distinction between active or primary negligence on the one hand and passive negligence on the other in cases of this character was again emphasized in Walters v. Rao Electrical Equipment Co., 289 N.Y. 57, 43 N.E.2d 810, where the court stated:
The general contractor and the subcontractor were joint active tort feasors. Thompson-Starrett Co. v. Otis Elevator Co., supra, 271 N.Y. 36 pp. 40, 43, 44, 2 N.E.2d 35. The case of Dudar v. Milef Realty Corp., 258 N.Y. 415, 180 N.E. 102, is not in conflict. There there was no defect in the hod hoist and no violation of statutory obligation with reference to it. It was the negligent operation of the hoist which constituted the active negligence.
In Boston & M. R. R. v. T. Stuart & Son, 236 Mass. 98, 127 N.E. 532, a traveler was injured when he fell over one of a row of stakes driven by the engineer of the railroad at the request of the contractor for the purpose of defining a street line. The injured party sued and recovered against the contractor and the railroad on a jury finding of negligence in leaving the stake unprotected. In a subsequent suit by the railroad against the contractor for indemnity, the court recognized the rule that an intent to indemnify one against his own negligence “must unequivocally appear.” It nevertheless held that the railroad was entitled to indemnity since the injured party’s recovery against the railroad was based solely on the latter’s responsibility to the traveling public for the neglect of the contractor. The court also pointed out that the failure to protect the stake was a breach of duty owed by the contractor to the railroad under its contract.
The Supreme Court of North Carolina reached the same conclusion on somewhat similar facts in Commissioners of Lexington v. Aetna Indemnity Co., 155 N.C. 219, 71 S.E. 214. The plaintiff, who was injured when he fell into a trench dug by the contractor across a sidewalk, recovered judgment against the contractor and the town. According to the jury’s findings, the contractor was negligent in digging the trench and in failing to safeguard it properly and the town was negligent in failing to safeguard the trench by lights or barriers. In holding that the contractor was obligated to indemnify the town despite the latter’s negligence, the court pointed out that the construction company was the author of the injury and the principal wrongdoer. “As between it and the town, the latter has committed no wrong.”
In Hartford Accident & Indemnity Co. v. Worden-Allen Co, 238 Wis. 124, 297 N. W. 436, the indemnity agreement covered damages and injuries “due to, arising from, or connected with” the contractor’s operations on the job. An employee of the contractor, who was injured while working under the contract, recovered a judgment against the owner on the theory that the latter had violated the safe-place statute. It was held that the owner was entitled to indemnity from the contractor, and the court stated:
. We have been able to discover no situation in which the indemnity contract would have any meaning or purpose if it were not to cover such a default by Seaman [the owner] as is here involved. As we have heretofore suggested, it may be that the contract does not cover cases in which the sole proximate cause of the injuries resulted in Seaman’s liability were defaults on the part of Seaman wholly uncontributed to by Worden. A *564strong argument can be made to the effect that such a case is not covered by the indemnity, but we need not decide this question because it is not here under the facts of this case.
The authorities offer substantial support for our conclusions here, although there is a conflict in the cases. We are cited to no Wisconsin case which is binding upon us. The cases which state what appears to us to be the better rule make a distinction between active and passive negligence.
A contract similar to the one involved in the present case was considered in Employers Mutual Liability Ins. Co. of Wis. v. Griffin Construction Co., Ky., 280 S.W.2d 179. It was held that the contractor was not obligated to.indemnify the owner, because there was no contention that the contractor was negligent. The court expressed the opinion, however, that the “proper construction of this provision is that the defendant would hold Inter-County harmless if its negligence was the sole or primary cause of the injury.”
If there were no contract of indemnity, petitioner would clearly be entitled to common law indemnity against respondent upon showing that while petitioner was guilty of passive negligence in some respect, respondent breached a duty owing not only to McDonald but also to petitioner. City of Amarillo v. Stockton, 158 Tex. 275, 310 S.W.2d 737; Renfro Drug Co. v. Lewis, 149 Tex. 507, 235 S.W.2d 609; Humble Oil & Refining Co. v. Martin, 148 Tex. 175, 222 S.W.2d 995; Austin Road Co. v. Pope, 147 Tex. 430, 216 S.W.2d 563; Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449. Since McDonald was an employee of respondent, any right of common law indemnity is precluded by the provisions of Art. 8306, Sec. 3, Vernon’s Ann.Civ.St. The holding in the present case will apply, however, in a situation where the injured party is not an employee of the indemnitor. We will thus be saying that a contract to indemnify against liability for injuries caused by the negligence or fault of the indemnitor affords less protection than the common law does under the same circumstances. The question will then arise as to whether the right to common law indemnity has been impliedly abrogated by the contract.
The facts of the present case have not been developed, and it may be assumed for the purpose of this opinion that petitioner’s only fault was in failing to take some precaution that would not have been required if respondent had done its work properly and in accordance with the contract. As pointed out by the dissenting opinion in McCann, the parties could not have intended for the indemnity agreement to be entirely meaningless. On the basis of the facts now assumed and in view of the relationship of the parties and the subject matter of the contract, it is my opinion that this is one of the cases intended to be covered by the agreement. That is not to suggest that the decision in City of Beaumont v. Graham, Tex.Sup., 441 S.W.2d 829, is unsound. The death of the workman there was caused by the primary negligence of the indemnitee in failing to inspect the premises and discover the hidden danger. This duty was owing to the indemnitor and its employees, who had done nothing to create the danger, and the duty should have been performed before any work was done under the contract. The facts of the case were thus quite different from those in the present case. I would hold that petitioner is entitled to indemnity under the contract if it appears that petitioner was guilty only of passive negligence in failing to discover, or warn of, or protect against, some hazard resulting from active or primary negligence on the part of respondent or the latter’s breach of some duty owing to petitioner.
REAVLEY, J., joins in this concurring opinion.