Jankele v. Texas Co

• Decision Date: 17 February 1936
• Docket Number: 5469
• Citation: 54 P.2d 425,88 Utah 325
• Court: Utah Supreme Court
• Parties: JANKELE et al. v. TEXAS CO

54 P.2d 425

88 Utah 325

JANKELE et al. v. TEXAS CO

No. 5469

Supreme Court of Utah

February 17, 1936

Appeal from District Court, Fifth District, Washington County; LeRoy H. Cox, Judge.

Action by J. F. Jankele and another against the Texas Company. Judgment for plaintiffs, and defendant appeals.

AFFIRMED.

Romney & Nelson, of Salt Lake City, and Orval Hafen of St. George for appellant.

Ellis J. Pickett, of St. George, for respondents.

EPHRAIM HANSON, Justice. ELIAS HANSEN, C. J., and FOLLAND and MOFFAT JJ., concur. WOLFE, Justice, concurring in part; dissenting in part.

OPINION

EPHRAIM HANSON, Justice.

Plaintiffs were the owners of a small tract of land in the town of Washington, Washington county, Utah. Defendant, a dealer in gasoline and oil products, in April, 1930, entered into a written agreement with plaintiffs for the installation by it of a gasoline tank and pump on plaintiff's land, and agreed to furnish to plaintiffs its gas and oil for sale to the motoring public. The installation was duly made by defendant's agent. In May, 1931, plaintiffs noticed a difference between the amount of gasoline received and that sold. This difference continued until September 1931, when the agent of defendant was called in, the tank exhumed, and a break found in the gasoline line. It is contended by plaintiffs that the break in the gasoline line was due to defendant having installed a solid joint in the line instead of a swinging joint or swinging "L." Plaintiffs claim that a swinging joint allows for the settling of the tank in the excavation and will not break when the settling takes place. Plaintiffs recovered a judgment for the sum of $ 615. To reverse the findings and decree of the trial court, defendant brings this appeal.

The first ground upon which a reversal of the judgment is sought is that defendant did not make the installation; that the installation was made by one William Stevenson personally, for and on his own account. The complaint alleges that the plaintiffs contracted with the defendant for the installation by defendant company of various gasoline pumps and other equipment for the handling and distribution of petroleum products at and on the property of the plaintiffs in Washington, Washington county, Utah; said equipment to be installed by defendant company and used by plaintiffs for the sale of defendant's products, consisting of gasoline and oil.

The answer sets forth that William Stevenson, an employee of defendant company, installed a pump and auxiliary equipment known as a Wayne No. 515 hand and air pump for plaintiffs in excavations made by plaintiffs, and alleges "that said pump and equipment were installed under equipment lease duly executed on April 11, 1930, by plaintiff and defendant which provided, among other things, that the plaintiffs were at their expense to keep said equipment in good order and repair." The lease referred to was introduced in evidence and recites that the expense of installing this equipment shall be paid by the dealer, and that the defendant company acknowledged receipt of $ 200 from the dealer as an advance for such expenses, and that, if the actual installation costs exceed the amount above specified, the dealer shall pay the company the amount of such excess promptly upon completion of installation, and, if the amount specified exceeds actual cost of installation, the company shall promptly refund to the dealer such excess.

The testimony shows that Mr. Stevenson was the agent of the defendant at the time the contract was entered into and at the time of the installation. Mr. Stevenson testified that it was against the company's rules and against the "code of ethics" for him to make the installation for the company, and that he did the installing as a personal matter and at his own expense and not as agent for the defendant. In view of the answer of the defendant and in view of the evidence that Stevenson was the agent of the defendant in making the installation, we feel the court was justified in making the finding which it did that the installation was made for the plaintiffs by the defendant company. Anderson v. Salt Lake City, 79 Utah 324, 10 P.2d 927; Wasatch Livestock Loan Co. v. Lewis & Sharp, 84 Utah 347, 35 P.2d 835, at page 841; Busby v. Century Gold Mining Co., 27 Utah 231, 75 P. 725; Hague v. Juab County Mill & Elev. Co., 37 Utah 290, 107 P. 249; Public Utilities Commission v. Jones, 54 Utah 111, 179 P. 745; 1 Bancroft's Code Pleading, § 429, p. 626, and cases there cited.

The defendant next asserts that it is absolved from liability because the contract between the plaintiffs and defendant contains the following provision:

"The dealer shall * * * at his expense keep said equipment in good order and repair; * * * exonerate the company and hold it harmless from all claims, suits and liabilities of every character whatsoever and howsoever arising from the existence or use of said equipment."

The defendant cites and relies chiefly upon the case of Burnett v. Texas Co., 204 N.C. 460, 168 S.E. 496, 497, which construes a similar contract. A reading of that case, however, does not support appellant's theory. The court in its opinion says:

"Although the contract further provided that the alleged lessee should keep the equipment in repair, nevertheless it was the duty of the defendant to furnish to the plaintiff equipment reasonably suitable for the purposes contemplated by the parties. The defendant was desirous of selling its products, if possible, and undertook to furnish equipment for hire to facilitate such sale. Consequently it knew that the installation or furnishing of defective equipment would occasion loss to the operator or dealer. Manifestly, if defects developed after installation and furnishing, it was the duty of the plaintiff to make repairs; but there is no evidence in the record tending to show that the equipment so furnished was defective at the time it was placed in the custody of the plaintiff."

It is quite clear from the above quotation that the court was dealing with a case where the equipment became defective after it had been turned over to the lessee, and not with a case where the equipment was defective when furnished, nor with a case of defective or improper installation.

The other cases cited by appellant are between landlord and tenant and have no application here. In the case at bar the question is not as to liability arising from the use of leased property, but arises from a defective and improper installation by the defendant. If the defendant undertook to and did install the equipment in a negligent manner, then it would be liable to the plaintiffs for damages occasioned by reason of that negligent installation. The contract does not pretend to relieve the defendant from damages occasioned by reason of improper and negligent installation. No such construction can be given to the contract. It is very doubtful that defendant could relieve itself by contract from its own negligence. Ordinarily such contracts are contrary to public policy.

"Undoubtedly contracts exempting persons from liability for negligence induce a want of care, for the highest incentive to the exercise of due care rests in a consciousness that a failure in this respect will fix liability to make full compensation for any injury resulting from the cause. It has therefore been declared to be good doctrine that no person may contract against his own negligence." 6 R. C. L. § 132, p. 727, and cases there cited.

There are certain exceptions to this rule, but those exceptions we need not be concerned with here.

The appellant next contends that the evidence does not warrant a finding by the court that the defendant was negligent in the installation of the equipment in question. The evidence shows that the directions for installing such equipment called for a swinging joint instead of a solid joint. The testimony further shows that the reason given by Mr. Stevenson for making a solid joint instead of a swinging joint at the time the installation was made was because he was unable to obtain a swinging joint either at St. George or Cedar City. At the time the break was discovered, Mr. Stevenson said that it was a poor installation, that a swinging "L" should have been used. Other testimony showed that a solid joint would not allow for settling, would be likely to break when settling occurred, and that it was customary and usual in installations of a similar kind to use a swinging joint or "L." We feel that the evidence is quite ample to support a finding that the installation was negligently done.

The question in the case which is fraught with most difficulty is whether or not the evidence as to the amount of damages is sufficient to sustain the findings of the court. It appears that in May the plaintiff observed a considerable discrepancy between the amount of gas sold and that received. This discrepancy continued during June, July, August, and into September. In September, Mr. Stevenson, the agent of the company, was sent for and an attempt was made to fill the pump, but it was then found that there was something the matter and the tank was dug up. The plaintiffs and Stevenson then checked the cash register showing the sales with the slips showing the amount of gasoline received and determined that there had been a loss of 3,363 gallons amounting to $ 615. One of the plaintiffs, Mr. Jankele, testified that, by checking the amount of gasoline received from the defendant with the sales that had been made, the amount lost through leakage could be accurately determined, and that $ 615 represented the correct amount. The other pumps were examined and found to be satisfactory. The testimony is quite clear that the loss was from the pump in...