Parton v. Mark Pirtle Oldsmobile-Cadillac-Isuzu, Inc., OLDSMOBILE-CADILLAC-ISUZ

• Decision Date: 06 February 1987
• Docket Number: No. 86-228-II,INC,OLDSMOBILE-CADILLAC-ISUZ,86-228-II
• Citation: 730 S.W.2d 634
• Parties: Grady PARTON, Plaintiff-Appellee, v. MARK PIRTLE, Defendant-Appellant.
• Court: Tennessee Court of Appeals

Page 634

730 S.W.2d 634

Grady PARTON, Plaintiff-Appellee, v. MARK PIRTLE OLDSMOBILE-CADILLAC-ISUZU, INC., Defendant-Appellant.

No. 86-228-II

Court of Appeals of Tennessee,

Middle Section,

at Nashville.

Feb. 6, 1987.

Application for Permission to Appeal

Denied by Supreme Court

May 4, 1987.

Frank M. Fly, Murfreesboro, for plaintiff-appellee.

B. Timothy Pirtle, McMinnville, for defendant-appellant.

OPINION

CANTRELL, Judge.

This dispute involves the efficacy of an exculpatory provision in a preprinted automobile repair order signed by the owner of the automobile.

In October of 1984 Mr. Parton, an automobile wholesaler, took a Cadillac automobile to the defendant for repairs. He signed a preprinted form containing a work order which authorized the defendant to perform the repairs specified thereon. The form used by the defendant contained the following provision in small print in the upper left corner:

"I hereby authorize the repair work hereinafter set forth to be done along with the necessary material and agree that you are not responsible for loss or damage to the vehicle or articles left in vehicle in case of fire, theft, or any other cause beyond your control ..."

Mr. Parton left the automobile in the possession of the defendant. The defendant's employees placed the automobile on an unfenced and unattended rear lot from which it was stolen. The Tennessee Bureau of Criminal Identification subsequently recovered the car in a damaged condition. Mr. Parton sued the defendant for the damages and after a bench trial in the Circuit Court of Rutherford County, the trial judge ruled that the language contained in the work order did not release the defendant from its negligence. Mr. Parton, therefore, recovered a judgment for his damages.

We note that the order signed by Mr. Parton, which is the foundation of the appellant's defense, is not in the record. In their briefs, the parties have referred to the language contained in a similar preprinted document which is apparently identical to the one in question. We will refer to that document also for the location and size of the type used in the exculpatory provision. A copy of the work order is attached as an appendix to this opinion.

The only issue raised by the appellant is:

"The trial court erred in denying the validity of an exculpatory clause in the contract between the parties executed by Mr. Parton releasing the dealership from any liability for damage to the motor vehicle caused by theft."

The appellant argues that Tennessee recognizes the validity of exculpatory provisions, or that one party may agree that another party will not be liable for future acts of negligence. As a statement of a legal principle, the appellant's contention is correct. In Empress Health and Beauty Spa, Inc. v. Turner, 503 S.W.2d 188, 190 (Tenn.1973), our Supreme Court said:

It is well settled in this State that parties may contract that one shall not be liable for his negligence to another but that such other shall assume the risk incident to such negligence. Said rule was stated and applied in Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960), where the agreement signed by plaintiff read, "I am hiring your horse to ride today and all future rides at my own risk."

Further, it is not necessary that the word "negligence" appear in the exculpatory clause and the public policy of Tennessee favors freedom to contract against liability for negligence.

There are some exceptions to the rule announced in Empress which we do not deem to be material. A common carrier may not by contract exempt itself from liability for breach of a duty imposed on it for the benefit of the public, Dodge v. Nashville C. & St. L. Ry., 142 Tenn. 20, 215 S.W. 274 (1919), and a railroad's liability for willful or gross negligence in running over a slave asleep on the track cannot be contracted away. Memphis and Charleston Railroad Company v. Jones 39 Tenn. (2 Head) 517 (1858). In addition, our Supreme Court has recognized an exception where the party seeking the protection of the exculpatory provision is a professional person rendering a service of great importance to the public. Olson v. Molzen, 558 S.W.2d 429 (Tenn.1977) (a physician who sought to escape liability for negligence in the performance of an abortion.) The Supreme Court said, "We do not approve the procurement of a license to commit negligence in professional practice." While it is arguable that the principle announced in Olson v. Molzen could be applied to the case at bar, we do not think the Supreme Court intended the rule to be applied to transactions by what the Court termed "tradesmen in the market place." Therefore, we do not apply the rule announced in Olson v. Molzen to this case.

The appellee contends, however, that the language used in the form does not purport to excuse the appellant's negligence. This argument is based on the assertion that the phrase "beyond your control" refers also to "fire" and "theft". Thus, the language used in the form excuses the appellant from liability for theft which results from causes beyond its control; the language, therefore, does not affect the defendant's liability for negligent acts.

We think there is some merit to the appellee's argument, but because of our view of the remaining issue in the case, we pretermit this contention. For the sake of argument, we assume that the language used in the form is effective to excuse the defendant's liability for theft whether or not the theft could, in the exercise of ordinary care, have been prevented.

We turn now to the appellee's contention that the language in the printed form excusing the appellant from liability for theft did not become a part of the contract between the parties. To support this proposition the appellee cites Savoy Hotel Corp. v. Sparks, 57 Tenn.App. 537, 421 S.W.2d 98 (1967), in which the plaintiff left his car in a hotel parking garage and was issued a claim check with the following language printed on it:

"Not responsible for damage by fire, storm, theft, accident, nor for articles left in car. Cars left after closing time at owner's risk."

Quoting from a prior New York case, the Court of Appeals held that the exculpatory language printed on the claim check did not become a part of the contract of bailment. The Court said:

"The plaintiff having had no knowledge of the existence of the special contract limiting the liability of the defendant ... and not being chargeable with such knowledge, the minds of the parties never met thereon, and the plaintiff cannot be deemed to have assented thereto, and is not bound thereby.

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If the plaintiff knew that the defendant had limited its liability ... either by his attention being called to it or otherwise, then, of course, the law would deem him to have assented to it, so that a binding contract would be effected. If he did not know it, I think the law imposed no duty upon him to read his check to find whether or not there was a contract printed thereon, or that he was guilty of neglect in not so reading it, because he had no reason to apprehend that a contract was printed thereon." 421 S.W.2d at 103-04.

The appellant contends, however, that the rule announced in Savoy Hotel applies only to cases involving an unsigned claim check; that there is a different rule in a case involving a signed agreement. The appellant relies on the cases of DeFord v. National Life and Accident Insurance Co., 182 Tenn. 255, 185 S.W.2d 617 (1945) and Moss v. Fortune, 207 Tenn. 426, 340 S.W.2d 902 (1960) in support of this contention. Perhaps the strongest statement of the rule relied on by the appellant is found in DeFord where ...