Howe Rents Corp. v. Worthen

• Decision Date: 09 December 1966
• Docket Number: No. 10583,10583
• Citation: 420 P.2d 848,18 Utah 2d 263
• Parties: d 263 HOWE RENTS CORPORATION, Plaintiff and Respondent, v. John WORTHEN, dba Exotic Swimming Pool Company, Defendant and Appellant.
• Court: Utah Supreme Court

Page 848

420 P.2d 848

18 Utah 2d 263

HOWE RENTS CORPORATION, Plaintiff and Respondent, v. John WORTHEN, dba Exotic Swimming Pool Company, Defendant and Appellant.

No. 10583.

Supreme Court of Utah.

Dec. 9, 1966.

K. Samuel King, Salt Lake City, for appellant.

R. William Bradford, Jr., and John M. Bradley, Salt Lake City, for Howe Rents Corp.

CALLISTER, Justice.

This is an action based on a written contract of bailment for damage done to plaintiff's equipment while in the possession of the bailee, defendant. Plaintiff is in the business of renting equipment to the public. Defendant, a swimming pool contractor, rented a cement mixer from plaintiff on August 4, 1962. Without assistance from defendant, plaintiff attached the mixer to defendant's two-ton truck by means of a chain and ball hitch. Subsequently, while the defendant was towing the mixer, it came loose and overturned, causing damage to it.

The case was tried before the court, and judgment was awarded to plaintiff after the court had considered the pleadings, the contract, and the stipulation of counsel as to the facts.

The trial court ruled that the bailor was entitled to recover from the bailee for the damage to the bailed chattel under the terms of the bailment contract. This, in spite of the fact that the bailor's negligence and that it was the proximate cause of the damage had been placed in issue by defendant's answer and the pre-trial order. In other words, the negligence of the bailor, if any, would not constitute a defense to the bailor's claim for damages under the terms of the agreement. The sole issue of this case is whether the provisions of this bailment contract can be so interpreted as to render the bailee liable for damages caused by the negligent acts of the bailor; so that the bailee's allegations of the bailor's negligence do not constitute a defense in this action.

The relevant provisions of the bailment agreement read as follows:

Lessee assumes all liability for damages from accident caused by or incurred in the use or transportation of said equipment, and agrees to indemnify and hold harmless the said Lessor, its officers, agents and employees from any and all damages and/or liability to any person whomsoever arising out of or resulting from the use, storage or transportation of said equipment by the Lessee or by anyone else while the equipment is in the custody of the Lessee. Lessee acknowledges receipt of the equipment in good working condition and repair and agrees to return it in as good condition, subject to reasonable wear and tear, and Lessee shall be liable for all damage to or loss of the equipment regardless of cause until it shall have been returned to and receipted for by the Lessor.

In Barrus v. Wilkinson, ¹ this court stated:

Where an indemnity agreement is involved it is generally held that the agreement will not be construed to cover losses to the indemnitee caused by his own negligent acts unless such intention is expressed clearly and unequivocally. Especially is this true where an affirmative act of negligence is involved.

This principal was further elaborated in Union Pacific Railroad Co. v. El Paso Natural Gas Co.: ²

A closely related proposition pertinent here is that the law does not look with favor upon one exacting a covenant to relieve himself of the basic duty which the law imposes on everyone: that of using due care for the safety of himself and others. This would tend to encourage carelessness and would not be salutary either for the person seeking to protect himself or for those whose safety may be hazarded by his conduct. For these reasons such covenants are sometimes declared invalid as being against public policy. However, this may depend upon the circumstances. The majority rule appears to be that in most situations, where such is the desire of the parties, and it is clearly understood and expressed, such a covenant will be upheld. But the presumption is against any such intention, and it is not achieved by inference or implication from general language such as was employed here. ³ It will be regarded as a binding contractual obligation only when that intention is clearly and unequivocally expressed.

If it had been the intent of the parties that the defendant should indemnify the plaintiff even against the latter's negligent acts, it would have been easy enough to use that very language and to thus make that intent clear and unmistakable, which was not done here.

In the instant case, the bailor prepared the document, and, therefore, in case of doubt or uncertainity it should be strictly construed against him. The general language 'the Lessee shall be liable for all damages to or loss of the equipment regardless of cause' does not constitute a clear and unequivocal expression creating an obligation for the bailee to indemnify the bailor for the bailor's negligent acts.

This case is reversed and remanded to allow defendant to assert his defense of the bailor's alleged negligence. Costs to appellant.

CROCKETT and TUCKETT, JJ., concur.

McDONOUGH, J., heard the arguments but died before the opinion was filed.

HENRIOD, Chief Justice (dissenting):

I dissent. True, I don't like cement mixers, particularly. Sometimes I don't like certain contracts. Both can be dangerous. The former are here to stay. The latter have been with us for quite some time,--long before the cement mixer. But this might contribute to a slow attrition of the contract and head it toward a judicial skid row and an affinity for a great society that sometimes does not recognize the sanctity of contracts,--I don't know.

Somewhat out of context the main opinion liberally quotes from Union Pacific Railroad Co. v. El Paso Natural Gas Co. Factually that case is different. It is sort of based on an 'iffy' approach to the effect that if one does not get out of bed in the morning, such a horrendous, distasteful event may have a serious impact on contractual obligations. It suggests that an indemnitor is liable if, and only if, injury occurs on the pipeline easement, but not if it occurs on a trail leading to and from it, with no other access. Such suggestion was pure dictum. But taking this dictum in context, with its prefatory obiter to the effect that everyone should be nice and prudent in his covenants so as not to interfere with the primary object that courts immalleably must do justice, it nonetheless urges that 'such covenants are sometimes declared invalid as being against public policy' but that 'this may depend upon the circumstances.' Further, that '(t)he majority rule appears to be that in most situations, where such is the desire of the parties, and it is clearly understood and expressed, such a covenant will be upheld.' Better that the main opinion had left this tidbit out, since it does not square with its opiniate that 'the bailor prepared the document, and, therefore, in case of doubt or uncertainity it should be strictly construed against him.'

The main opinion's explanation is a non sequitur. The language in this contract was crystal clear. Without any semblance of syllogistic reasoning, the main opinion does not clear up any doubt, but creates one when it says '(t) he general language (that) the Lessee shall be liable for all damage to or loss of the...