Gimbel Brothers, Inc. v. William H. Vanderherchen, Inc.

• Decision Date: 20 October 1972
• Docket Number: No. 71-1790.,71-1790.
• Citation: 468 F.2d 597
• Parties: GIMBEL BROTHERS, INC., Appellant, v. WILLIAM H. VANDERHERCHEN, INC., Appellee v. BELGRADE WAGON WORKS, Third-Party Defendant.
• Court: U.S. Court of Appeals — Third Circuit

468 F.2d 597 (1972)

GIMBEL BROTHERS, INC., Appellant, v. WILLIAM H. VANDERHERCHEN, INC., Appellee v. BELGRADE WAGON WORKS, Third-Party Defendant.

No. 71-1790.

United States Court of Appeals, Third Circuit.

Submitted September 7, 1972.

Decided October 20, 1972.

Richard W. Hopkins, White & Williams, Philadelphia, Pa., for appellant.

John T. Quinn, McEldrew, Hanamirian, McWilliams, Quinn & Bradley, Philadelphia, Pa., for appellee.

Before SEITZ, Chief Judge, and VANDUSEN and ALDISERT, Circuit Judges.

Submitted Under Third Circuit Rule 12(6) September 7, 1972.

OPINION OF THE COURT

VAN DUSEN, Circuit Judge.

Gimbel Brothers, Inc. (Gimbel) appeals from the district court's entry of summary judgment in favor of the defendant, William H. Vanderherchen, Inc. (Vanderherchen).

Gimbel's complaint alleged that Vanderherchen had contracted to erect various tents for a two-week period at Gimbel's Cheltenham branch. After the tents were up, there was a rainstorm and the tents leaked, resulting in about $40,000 worth of damage to Gimbel's goods stored in the tents. Gimbel alleged that this injury was due to Vanderherchen's negligence in supplying or erecting the tents. Jurisdiction was based on diversity.

The district court granted Vanderherchen's motion for summary judgment, which incorporated the lease, because the following provision appeared in such lease prepared by Vanderherchen:

"3. Lessee Gimbel Brothers, Inc. hereby indemnifies and agrees to save and keep Lessor William H. Vanderherchen, Inc. harmless of and from any loss, damage, liability, costs, claims or charges whatsoever arising as a result of any claim for damage to property, or injury to person, from, during or because of the use of the leased property by Lessee, or the erection or taking down thereof, or storing thereof upon the premises, or otherwise, while the same are in the custody or possession of Lessee, except injuries to any employees of Lessor not caused through Lessee\'s negligence. Without limiting the generality thereof, it is agreed that lessor shall not be liable for and is hereby indemnified against, any damage to property or injury to person suffered by anyone whatsoever through or because of the said leased property while the same is in Lessee\'s possession or custody due to any fire, no matter how arising in the said leased property or any breakage defect or failing thereof or to any strikes, picketing, labor disturbances or acts of anyone arising from any labor controversy whether the persons committing the same be at the time employees of Lessor or not."

The test of the effectiveness of such a provision¹ has been set forth in Dilks v. Flohr Chevrolet, Inc., 411 Pa. 425, 436, 192 A.2d 682, 688 (1963):

"Where a person claims that, under the provisions and terms of a contract, he is rendered immune from and relieved of any liability for negligent conduct on his part or the part of his employees, the burden is on such person to prove (a) that such contractual provisions and terms do not contravene public policy and (b) that the provisions and terms of the contract clearly and unequivocally spell out the intent to grant such immunity and relief from liability." (Emphasis in original.)

See Neville Chemical Co. v. Union Carbide Corp., 422 F.2d 1205, 1216-1221 (3d Cir. 1970); Warren City...