Warren City Lines, Inc. v. United Refining Co.

Dissenting Opinion by

Cercone, J.:

I disagree with the reasoning of the majority in parts II and III of its opinion.

The language of the indemnity clause here involved can be and must be declared as a matter of law not to constitute a release of appellee’s liability for its own negligence. The case of Schroeder v. Gulf Refining Co. (No. 2), 300 Pa. 405 (1930), as quoted and relied on by the majority, so determined the issue when a similar clause was before it for consideration. In that *320 case the clause in question read: “ ‘That the party of the second part shall indemnify and save harmless the party of the first part of and from any and all liability for loss, damage, injury or other casualty, to persons or property, caused or occasioned by any leakage, fire or explosion of gasoline stored in said tank, or drawn through said pump, or any other casualty in any way growing out of or resulting from the installation and operation of said equipment; whether due to imperfection in said equipment, or to any fault in the installation and operation thereof, whether the same arises from negligence or otherwise:’ ”

The Supreme Court of Pennsylvania interpreted that clause as not intending to release the defendant from liability for its own negligence, the court saying: “‘A party may contract for indemnity against the results floAving from his OAvn acts, but no inference from words of general import can establish it; on the contrary, the intent' of both parties to that effect must be made apparent by clear, precise and unequivocal language’: Camden Safe Dep. & Tr. Co. v. Eavenson, 295 Pa. 357 . ‘In all cases such contracts should be construed strictly with every intendment against the parties seeking their protection’: Crew v. Bradstreet Co., 134 Pa. 161 ; P. R. R. Co. v. Roydhouse, 267 Pa. 368 . Though an agreement of indemnity for loss or damage is enforceable (Rundell v. Lehigh Valley R.R. Co., 254 Pa. 529 ; Atherton v. Clearview Coal Co., 267 Pa. 425 ), the purpose to so relieve from liability must clearly appear, and the words used must be construed in connection with the circumstances attending the parties and their object in making the instrument: Perry v. Payne, 217 Pa. 252 ."

The court then applied that rule to the clause there in question and concluded: “The apparent purpose of the release was to provide against negligence of others, such as the plaintiff, the manufacturer who supplied *321 the device, the one who installed it, or third parties, but not from the carelessness of defendant’s employees in delivering oil into the tank, even though the fuel would subsequently be drawn through the pump, as the needs of customers made this necessary. ... It would be needless to require a retaking of the testimony if the only question involved is the effect of the release, which, if in force, did not relieve defendant of responsibility.”

I see no reason for distinguishing the Schroeder decision in the instant case. Nor does the majority, which relies on and approves of the Schroeder decision, state any reason for not following the conclusion there reached. In fact, the language of the clause interpreted in the Schroeder case was broader in scope in that it included the further phrase, “whether due to imperfection in said equipment, or to any fault in the installation and operation thereof,” and yet it was determined that the language was insufficient to evidence an intent to relieve defendant from liability for its own negligence.

I see no reason, therefore, for the majority’s remand for a determination as to the intent of the parties when under applicable law we must construe the clause as insufficient to evidence an intent to release the defendant from liability for its own acts of negligence. The case should not be remanded for parol evidence as to intent when the courts have already declared the clause in question as not containing “the clear, precise and unequivocal” language needed to evidence an intent to release defendant from liability for its own negligence.

For similar reasons I dissent from the holding in part III of the majority’s opinion in which the case is remanded for evidence as to intent to release defendant from liability for conditions which occurred or *322 were created prior to the effective date of the clause. Here again the very case quoted and relied upon by the majority, Employers Liability Assurance Corporation, Ltd. v. Greenville Business Men’s Association, 423 Pa. 288 (1966), determined that: “If a party seeking immunity from liability for negligent conduct intends exculpation for past as well as future negligent conduct it is his obligation to express in the agreement such intent in an unequivocal manner; absent a clear expression of intent, the clause of exculpation will not be so construed. It was the burden of the Association in this case to establish such intent and that burden has not been sustained. A construction of the exculpatory clause in this lease, in conformity with the standards enunciated in our case law, compels the conclusion that this clause was intended to operate prospectively, not retrospectively.” The clause in this case contains no unequivocal expression of intent to relieve defendant from liability for past negligent conduct and hence it is improper to remand the case for the taking of parol evidence as to such intent.

I would therefore hold that the indemnity clause in question must be interpreted as a matter of law as not relieving defendant from liability for its own negligence and not relieving defendant from liability for past negligent conduct. I would reverse and remand for proceedings only on the other issues of fact involved.