Weaver v. American Oil Company, No. 1268A206
| Docket Nº | No. 1 |
| Citation | 261 N.E.2d 99 |
| Case Date | August 13, 1970 |
| Court | Court of Appeals of Indiana |
Page 99
v.
AMERICAN OIL COMPANY and Homer Hoffer, Appellees.
Opinion on Rehearing Oct. 13, 1970. See 262 N.E.2d 663.
Rehearing Denied Nov. 9, 1970.
Opinion Superseded 276 N.E.2d 144.
Byron C. Kennedy, Herbert H. Bent, Warsaw, for appellant.
Arthur A. May, Crumpacker, May Levy & Searer, South Bend, for appellees.
SULLIVAN, Judge.
The issue presented is whether the exculpatory portion of a hold harmless clause in an adhesion contract is valid under the circumstances here presented. Appellees, American Oil Company and its employee Homer Hoffer, (hereinafter referred to as American Oil) brought an action for declaratory judgment requesting the trial court to determine whether the exculpatory portion of a hold harmless clause of a lease executed by American Oil and appellant, Howard Weaver, required Weaver to defend, indemnify, and reimburse American
Page 101
Oil for any liability in a personal injury action previously instigated by Weaver against American Oil. Trial was had to the court and the court ruled that Weaver was required to defend, indemnify and reimburse American Oil. This appeal was initiated from such determination on the ground that it is contrary to law and is not sustained by sufficient evidence.APPELLANT WEAVER HAS NOT WAIVED ANY SPECIFICATION OF ERROR
Before discussing the merits of this appeal, brief mention must be made of American Oil's contention that appellant has waived certain specifications of error because of his failure to specify in the argument section of his brief either the assigned error urged or the specification of a motion for new trial upon which he relies, in violation of Rule 2-17 of the Rules of the Indiana Supreme Court. 1 Pursuant to the principle that we will, whenever possible, dispose of appeals upon their merits, we conclude that appellant's brief substantially complies with Rule 2-17, as well as with Indiana Rule of Procedure, AP.8.3. Fairwood Bluffs Conservancy District V. Imel (1970), Ind.App., 255 N.E.2d 674, 20 Ind. Dec. 362.
At the time of trial Weaver was 54 years old residing in Mishawaka, Indiana. He left high school after one and one-half years and went to work as a farm laborer. In 1940, he attended an arc welding school for three months and from 1942 until 1956 worked at automobile plants as an arc welder. In 1956, Weaver learned that a particular filling station lease might be available from American Oil. With his wife, he went to the American Oil office in South Bend. They talked to a salesman, Campbell, concerning such lease. Weaver told Campbell that he (Weaver) had worked part-time in three filling stations, and that he had the money to finance the inventory. Shortly thereafter, Campbell advised Weaver that he could have the station. Weaver next saw Campbell a few days later when they met at the filling station for the purpose of taking inventory. After inventory was taken, Campbell took a lease from his pocket, laid it on a desk and said, 'sign'. Weaver signed. This was the only conversation relative to the lease. There is nothing in the record to indicate that Weaver read the lease; that Campbell asked Weaver to read it; or that Campbell in any manner attempted to call Weaver's attention to the hold harmless clause in the lease. Weaver next saw the lease when a fully executed copy arrived in the mail approximately one week later. The lease period was for one year. In 1957, a salesman for American Oil brought another lease to Weaver at the filling station, and Weaver signed it. This procedure reoccurred each year through 1961.
American Oil owned certain equipment located upon the leased premises, including an air compressor, a lift, grease equipment, gasoline pumps, and underground storage tanks. On occasion the equipment needed repair, in which case Weaver would call American Oil. They would send a repairman to repair the equipment for which no charge was ever made. Appellee, Homer Hoffer, was a repairman working for American Oil, and was one of the men who came to repair equipment. On April 27, 1962, during the pendency of the 1961 lease, Hoffer, as agent and employee of American Oil came onto the leased premises for the purpose of repairing certain gasoline pumps. Following the repair of the gas pumps and during the demonstration thereof by Hoffer, gas was sprayed about and over the person of Weaver and his employee, Miller. The gasoline ignited burning Weaver and his employee. Weaver and the employee filed suit in the St. Joseph Circuit Court seeking recovery of damages from American Oil for personal injuries allegedly suffered
Page 102
because of the negligence of Hoffer. Thereafter, American Oil...To continue reading
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Center Tp. of Porter County v. City of Valparaiso, No. 3-780A211
...between an indemnification clause and an exculpatory clause was drawn by the Court in Weaver v. American Oil Company (1970), Ind.App., 261 N.E.2d 99 (reversed on other grounds) at 257 Ind. 458, 276 N.E.2d 144. See also, Vernon Fire & Casualty Insurance Co., supra, 336 N.E.2d at...
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Fresh Cut, Inc. v. Fazli, No. 49A02-9307-CV-334
...510, 513. A contract is thought to be the product of the free bargaining of the parties. Weaver v. American Oil Co. (1970), Ind.App., 261 N.E.2d 99, 103, superseded, 257 Ind. 458, 276 N.E.2d 144. As a general rule, the law allows persons of full age and competent understanding the utmost li......
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Weaver v. American Oil Co., No. 1271S350
...indemnify them for any damages or loss incurred as a result of its negligence. The appellate court held the exculpatory clause invalid, 261 N.E.2d 99, but the indemnifying clause valid, 262 N.E.2d 663. In our opinion, both these provisions must be read together since one may be used to effe......
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Standard Steel & Wire Corp. v. Chicago Capital Corp., No. 60122
...as 'one capable of being understood in more senses than one * * *.' First Nat. Bank v. Victor Comptometer Corp., 123 Ill.App.2d 335, 341, 261 N.E.2d 99, This record shows that at trial plaintiff did not depend upon the letter as being clear and unambiguous. Plaintiff not only introduced in ......
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Center Tp. of Porter County v. City of Valparaiso, No. 3-780A211
...between an indemnification clause and an exculpatory clause was drawn by the Court in Weaver v. American Oil Company (1970), Ind.App., 261 N.E.2d 99 (reversed on other grounds) at 257 Ind. 458, 276 N.E.2d 144. See also, Vernon Fire & Casualty Insurance Co., supra, 336 N.E.2d at...
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Fresh Cut, Inc. v. Fazli, No. 49A02-9307-CV-334
...510, 513. A contract is thought to be the product of the free bargaining of the parties. Weaver v. American Oil Co. (1970), Ind.App., 261 N.E.2d 99, 103, superseded, 257 Ind. 458, 276 N.E.2d 144. As a general rule, the law allows persons of full age and competent understanding the utmost li......
-
Weaver v. American Oil Co., No. 1271S350
...indemnify them for any damages or loss incurred as a result of its negligence. The appellate court held the exculpatory clause invalid, 261 N.E.2d 99, but the indemnifying clause valid, 262 N.E.2d 663. In our opinion, both these provisions must be read together since one may be used to effe......
-
Standard Steel & Wire Corp. v. Chicago Capital Corp., No. 60122
...as 'one capable of being understood in more senses than one * * *.' First Nat. Bank v. Victor Comptometer Corp., 123 Ill.App.2d 335, 341, 261 N.E.2d 99, This record shows that at trial plaintiff did not depend upon the letter as being clear and unambiguous. Plaintiff not only introduced in ......