Loper v. Standard Oil Co., No. 20373

• Docket Nº: No. 20373
• Citation: 138 Ind.App. 84, 211 N.E.2d 797
• Case Date: November 29, 1965
• Court: Court of Appeals of Indiana

Page 797

211 N.E.2d 797 138 Ind.App. 84 Robert C. LOPER, Appellant,
v.
STANDARD OIL COMPANY, R. Scurta and Anna Maguran Scurta,
Appellees. No. 20373. Appellate Court of Indiana, Division No. 2. Nov. 29, 1965.

[138 INDAPP 85]

Page 798

Philip M. Cagen, William W. Andersen, Jr., Valparaiso, for appellant.

Daniel F. Kelly, Allen W. Teagle, Hammond, Tinkham, Beckman, Kelly & Singleton, Hammond, G. Edward McHie, Hammond, of counsel, for appellee Standard Oil Co.

Peters, McHie, Enslen & Hand, Hammond, of counsel, for appellees Scurtas.

HUNTER, Judge.

This is an appeal from the Porter Superior Court wherein the court sustained both the appellees' demurrers to the appellant's third amended complaint. The appellant refused to plead further and judgment was rendered. The appellant then brought this appeal.

On a demurrer in the absence of a motion to make more specific, we should take all facts well pleaded as true. Seaney v. Ayres (1963), 135 Ind.App. 585, 189 N.E.2d 826; Ebbeskotte v. Tyler (1957), 127 Ind.App. 433, 142 N.E.2d 905.

The facts as pleaded are as follows: on or about November 15, 1951 the owners-appellees Scurtas entered into a lease with the appellee Standard for ten (10) years with the right to renew for ten (10) years. In that lease the landlord covenanted to make repairs on the leased premise. Said lease is not before us on this appeal. On September 10, 1955 the appellant Loper entered into a lease with Standard. The lease was renewed from year to year. This lease, the only one [138 INDAPP 86] before us on this appeal, contained a 'hold harmless clause' indemnifying the landlord from liability for his negligence.

"3. Lessor, its agents and employees shall not be liable for any loss,

Page 799

damage, injuries, or other casualty of whatsoever kind or by whomsoever caused to the person or property of anyone (including the lessee) on or off the premises, arising out of or resulting from the Lessee's use, possession or operation thereof, or from the installation, existence, use, maintenance, condition, repair, alteration or removal of any equipment thereon, whether due in whole or in part to negligent acts or omissions of the Lessor, its agents or employees; and the Lessee for himself, his heirs, executors, administrators, successors and assigns, hereby agrees to indemnify and hold Lessor, its agents and employees, harmless from and against all claims, demands, liabilities, suits or actions (including all reasonable expenses and attorneys' fees incurred by or imposed on the Lessor in connection therewith) for such loss, damage, injury or other casualty. The Lessee also agrees to pay all reasonable expenses and attorneys' fees incurred by the Lessor in the event that the Lessee shall default under the provisions of this paragraph."

The appellant (sub-lessee) also covenanted to repair as follows:

"That Lessee will pay all water, light and other operating expenses and will keep said premises, buildings, equipment, machinery and appliances, together with the adjoining sidewalks and entrance driveways in good order and repair."

Standard (sub-lessor) at various times inspected the premise and made repairs at its own expense. Standard specifically inspected the furnace on the leased premise at the request of the appellant. Standard told the appellant that the furnace was working properly and that they would inspect it from time to time. If they found that it needed repairs, they would do so. The appellant also avers that he told the owners Scurtas of the defective furnace. On February 15, 1961 the furnace exploded causing damage to the appellant's property. The appellant avers various acts of negligence on the part of [138 INDAPP 87] the appellees as the direct and proximate cause of the explosion.

The appellant assigns as error the lower court's action in sustaining the separate demurrers of the appellees. Said demurrers were directed to the plaintiff's failure to state facts sufficient to constitute a cause of action in his complaint.

The appellee Standard in the memorandum to its demurrer stated that the indemnification provision acted as a bar to the cause of action as brought by the appellant against the appellee Standard as a sub-lessor. The appellant contends that such provision contravenes public policy.

The case law as it relates to the matter at bar indicates that the appellant's contentions are in error.

This court in construing an indemnification provision similar to the one on this appeal, stated in Franklin Fire Ins. Co. v. Noll (1945), 115 Ind.App. 289, 58 N.E.2d 947:

'We know of no provision in the state constitution or statutes, and have been unable to find any Indiana decision which declares that a clause in a contract, or a lease, between landlord and tenant, similar to the one under consideration, is null and void as against the public policy of this state. On the contrary, the uniform trend of the decisions in Indiana clearly upholds the right of freedom of contract, guaranteed by both the Federal and State constitutions. * * *

Therefore, it is our opinion that under the Indiana authorities the clause in the lease under consideration is not void as against public policy and that the facts stated in appellant's complaint are insufficient to constitute a cause of action. * * *' (Our emphasis.)

See also Niederhaus v. Jackson, (1923), 79 Ind.App. 551, 137 N.E.2d 623.

Page 800

The appellant cites Freigy v. Gargaro Company, Inc. (1945), 223 Ind. 342, at p. 353, 60 N.E.2d 288, as supporting his proposition that a party may not contract against its own negligence for such would contravene public policy. Our Supreme Court stated therein that 'A party may not contract[138 INDAPP 88] against his own negligence. 31 C.J., p. 433, n. 22.' However, in reviewing this authority, we find that the authority cited does not support this rule. Also, in 42 C.J.S. Indemnity Sec. 7, p. 573, the authority states:

'Negligence. The parties may lawfully bind themselves by contract to indemnify against to relieve from liability on account of future acts of negligence, whether the negligence indemnified against be that of the indemnitor or his agents or that of the indemnitee or his agents.'

In addition the above statement in Freigy, supra,...