*1 263 rights cate the of these in accord- 420 P.2d applicable ance with equity. rules of law and Plaintiff, CORPORATION, RENTS HOWE Respondent, Having concluded that it is neces sary to pro remand this case for further Swimming John dba WORTHEN, Exotic Pool ceedings, it duty pass is our on matters Company, Appellant. Defendant may then become material.3 Plain No. 10583.
tiff called Mr. as a witness and Jess James Supreme Court of Utah. questioned him reputation as to the of Mr. veracity, Peterson for truth and 9, Dec. 1966. objection was sustained. The rule is recognized by statutory both our and de
cisional law that where there a conflict
in the testimony witnesses, opposing reputation
their veracity for truth and is a
relevant may issue which evidence
presented.4 judgment is vacated and the
remanded for proceedings further consis-
tent with this opinion, including taking additional may evidence that seem may
advisable in order that the court fulfill
its responsibility making findings on all
material facts and then rendering such
judgment appropriate as it deems thereon.
Costs to (appellant).
HENRIOD, J., CALLISTER, C. TUCKETT, JJ., concur.
McDONOUGH, J., arguments, heard the
but died
before the
was filed.
Rule'76(a), U.R.C.P., Joseph
3. See
affecting
v. W.
evidence
his character
* *
Hospital,
39,
H. Groves
truth, honesty
integrity
L.D.S.
7 Utah 2d
See
Marks,
204,
State v.
chain and ball hitch. mixer, towing came the defendant was overturned, it. causing damage to loose and court, and The case was tried before the *2 plaintiff judgment after the was awarded to con- pleadings, the the court had considered tract, stipulation as to and the of counsel the facts. trial ruled that the bailor was court the
entitled to from the bailee for the damage to the chattel under bailed This, contract. terms of the bailment negligence spite the bailor’s of fact that the the proximate cause of and was the by placed in defend- damage had been issue pre-trial ant’s the order. answer and bailor, words, the other the of to the any, a defense constitute ap- King, City, K. Samuel Salt Lake for terms damages for under the bailor’s claim pellant. agreement. The sole issue of bail- provisions of this case is whether the M. Bradford, Jr., R. and William John interpreted as to ment contract can so Bradley, City, Rents Lake for Howe Salt damages caused bailee liable for render the Corp. bailor; by so acts of the allegations of bailee’s CALLISTER, Justice. in this gence do a defense not constitute a written con- an action based on is action. plain- to damage of for done
tract bailment provisions The relevant of the bailment possession equipment in the of tiff’s while agreement read as follows: is in bailee, defendant. Plaintiff public. liability renting equipment to tire dam- business of assumes all for Lessee contractor, Defendant, swimming pool by or incurred ages from accident caused equip- transportation on said of rented a cement mixer from the use or hold ment, agrees from to and August Without assistance and officers, Lessor, to its defendant, plaintiff mixer harmless the said attached the agents employees all and by and means of defendant’s truck two-ton liability any person 'everyone: imposes the law that of and/or safety arising resulting using out of or due whomsoever care for himself use, transportation from the or others. storage This would tend to en- any- courage equipment by by said Lessee and would not be carelessness equipment salutary person seeking else while the is in the either for the protect custody safety himself of the Lessee. Lessee acknowl- those whose may edges receipt equipment good by hazarded his conduct. For these working repair reasons are some- agrees condition such covenants condition, subject times being against to return it in declared invalid as good public policy. However, tear, depend reasonable wear Lessee shall majority be liable for all or loss of circumstances. The appears rule equipment situations, regardless of cause until to be-that in most where parties, have returned such is the shall been to and desire ceipted by clearly and it the Lessor. understood and ex- pressed, upheld. such a covenant Wilkinson,1 In Barras v. this court But presumption against any stated: intention, and it is not achieved infer- indemnity agreement Where an in- *3 ence general lan- generally volved held agree- it is that the guage employed such as was here.3 It ment will not be construed to cover losses regarded binding aas contractual the indemnitee caused his own obligation only when that intention is ligent acts such ex- unless intention is clearly expressed. and unequivocally pressed clearly unequivocally. Espe- and If it had been intent cially is this true where an affirmative that the indemnify defendant should act of involved. plaintiff even against the latter’s principle was further elaborated in gent acts, it easy enough been have Union Pacific Co. El Railroad Paso Nat to use that very language and to thus ural Gas Co.:2 make that unmistakable, intent clear and A closely proposition pertinent related which was not done here. here is that the does not look with law upon favor exacting pre a covenant to the instant the bailor duty pared document, relieve himself and, therefore, basic in case 205, P.2d 207, 204, indemnify agreed 1. 16 2d Utah 398 3. The defendant had (1965). against any 208 the all “from * * * 255, 259, liability, loss, claims, damage, 2d * * * nature, of whatsoever howso * * *(cid:127)” ever caused: strictly Factually uncertainty of doubt or that case is different. It it should is sort “iffy” lan- against general approach The based on an to the construed him. effect guage get “the liable for all bed Lessee shall be that if one does not out of in equipment regard- horrendous, morning, to or loss of a distasteful impact of cause” does not a clear and less constitute event have a on con- serious unequivocal expression creating obliga- obligations. an that in- suggests tractual if, if, bailee to the bailor injury tion for the demnitor liable oc- easement, pipeline for the bailor’s acts. on the but not if it curs it, a leading occurs on trail to and from to al- This case is and remanded reversed suggestion with no other access. Such was low defendant to assert his defense pure taking dictum. But dictum ap- alleged negligence. Costs to context, prefatory with obiter to the its pellant. everyone effect that should nice and prudent in his not to inter- covenants so as TUCKETT, JJ., con- CROCKETT primary object fere with the that im- courts cur. malleably justice, must it nonetheless do urges that “such covenants are sometimes McDONOUGH, J., arguments heard the against invalid being public declared opinion filed. but died before the policy” may depend but that “this Further,
circumstances.” that ma- “[t]he HENRIOD, (dissenting) : Chief jority appears rule be that most situa- Justice tions, parties, where such the desire of True, like cement I don’t I dissent. n clearly expressed, and it is understood I don’t mixers, Sometimes particularly. upheld.” covenant will be Better danger- can be contracts. Both certain like the main left this had tidbit stay. The former are here ous. out, square opini- since it does its with quite some been us latter have prepared document, ate “the bailor But mixer. before cement time, long — and, therefore, doubt uncer- case of attrition might contribute to a slow tainty strictly should be construed judicial and head toward contract society him.” affinity great and an skid row *4 recognize the sanc- does not
that sometimes opinion’s explanation is The main a non contracts, know. don’t tity of —I sequitur. language The in thisvcontract crystal any opin- clear. semblance of main Without the out of context Somewhat opinion syllogistic reasoning, main the does quotes Union Pacific liberally from ion doubt, up any but clear creates one Gas Co. not El Paso Natural Railroad Co. when, general language in says (that) something to be desired the leaves seance “[t]he damage be all to shall area. the Lessee liable of equipment regardless loss opinion Some more loose talk in the main this not constitute cause” that “does is cause for says concern. It “The is- sole creating unequivocal expression clear and sue provisions of this is the case whether obligation the bailee an of this bailment inter- contract can so Why negligent for the acts.” bailor bailor’s preted as to render the bailee liable for language not? No could clearer. caused acts of public policy against it is is some- Whether bailor; allegations so that of bailee’s
thing else. do not constitute a opinion that is So: we find the main defense in this action.” inconsistency: 1) the contract based that I think this opinion statement in the main public policy against is for the reason that really were, was unintended. If it then the clearly expressed. 2) is not whole case opinion falls the main is clarity If its lack is the basis for grasping at straws. The statement of the conclusion, opinion wrong, is dead intended, since author of opinion, the main clear, say can language simply no one not is would eliminate in case. position preclude unless someone takes such recovery if the defendant disregard coyly lexicography. alleged utter that the was a con- genital liar, usually pleadings, — might crystal One that clear assert —but not in proof. hope I expand- agreement language public of this is ed philosophy will hit the national policy, clarity say warp but he cannot porter system, key number, awith else de- clarity, sovereign opinion, in his that fense counsel be let out of school and obscure, spite of Hell that will have day easy field making I fees. high water, proclaims If the he it thus. thought allegations respect reasons, equitable contract uncertain for ligence proved, had accepted. —not thing, that is one and it is void. In that get from opinion the main this is they go event back to where not so. opinion ignored main started. The has principles by objective, desired result opinion in the main mayhap may antipathy be due to- that the trial court ruled the bailor was rentals, equipment print, ward fine or some- entitled to the bailee for the thing else about un- dissident is to the bailed chattel under the terms reasoning main aware. The the bailment contract, assuming even *5 '268: conjecturally by proffered exhibits in con- negligent, and
'that the bailor was trial, proximate nection with a motion for a which negligence might he the new by- supported by drawings was of an damage. of the The trial court cause artist, ges- as- defendant himself. made no or otherwise —the my ture In also was too late and too little. sumption. self-serving a reflected evasive he de- simply trial said court action. suggested greater knowledge a con- liability cided under there was no pro- about the mechanics of the trailer’s tract, matter of he would consider pensities Why than that of the lessor. was there gence. He decided That’s all. artistry display defendant did not his before No liability That’s all. under contract. beyond me and motion for a new trial is objected to this conditional conclusion. represents nothing than a maize-like more lia- found No one insisted that if the court twiddle-twaddle. contract, re- bility there would under the defendant, are that The facts in this case question negligence. main A belated a expression expertise, with his confident it, complained about new trial
motion a defects, saw no heard no defects and ex- little. For too late too was pressed nothing about defects. This is mon- appellant spent a lot appeal, time on first key pleadings and the business. Under the liability un- talking about absolute of time discovery procedure in trial anyone find in der a statute.1 invite right refusing court dead a was to start ever a was the record where such statute trial, brand new a new case on motion for sort of suggested. This is urged or even presented theretofore the case in NOT lately Johnny come stuff. weapon. chief. If a One chooses his sword duel, if the “touche” is chosen in proffer a for new trial motion On pistol he a comes, cannot then choose sug- without a snitch or made was adversary six-gun-less. his who is clobber arose proposed evidence gestion that evidence, newly as is discovered Wilkinson, heavily leaned on Barrus v. quired the rules. under case in majority, involved lessor, antithesis superficial lessee sued a Furthermore, is a rather there —the my opinion, it different instant case. plaintiff must have been suggestion here, except supply a This red from the reason or another. ligent for some opinion. to the main dessert bottomed pinpointed, but was flag 41-G-148.40, U.C.A.1953. 1. Section opinion’s Aside from the main incon- "flecting that knowingly Howe or wilfully sistencies, other there are reasons to sustain up dangerous set condition.
the trial court. The omnibus clause about indemnifica-
Howe leased a cement mixer to Worthen. tion inapropos cause is under *6 hooked it He onto the latter’s car. Worth- the facts of this and is a straw pulled county en it outside of the in contra- grasped to arrive at a conclusion the main signed agreement. vention of his The cou- opinion happens '(All emphasis to favor. pling another, broke for some reason or not added.) pleadings disclosed in this case, causing damage in the amount
$306.71. gave judgment trial court
amount, pro- based on the contract which accepted
vided that the mixer as Worthen being condition, good would that he Beverly HOWE, Appellant, Plaintiff and condition, it in return the same would responsible in the to it JACKSON, Mercy Ambulance, agreed interim. He also that he Walter dba Respondent. Defendant and remove, county, it from did in which he provision. violation' of that No. 10570. says can’t be- Worthen Howe Supreme Court of Utah. negligent.
cause he was The evidence Dec. proves nothing says sort. He Howe comply because he did not statute, safety however, forgetting, plead prove any either to violation so, until it was statute too late. Even urgence inconclusive, be of if it
any interest, made reference is to Klafta v.
Smith, 2d P.2d 659 think contract here void was not was, being against public policy. If it response
the action and the in this were ill-conceived,
both particularly in view fact nothing that there this case