432 Pa. 140 | Pa. | 1968
Lead Opinion
Opinion by
This is an appeal from the order of the Court of Common Pleas of Bucks County which sustained appellees’ (King’s) preliminary objections in the nature of a demurrer and entered an order striking appellant’s (Steel’s) defense that King had released it from liability for the damage alleged in the trespass complaint.
In this action, King seeks to recover damages in excess of $1.5 million for alleged injury to its growing crops allegedly caused by air pollution from Steel’s Eairless Works in Falls Township, Bucks County.
King instituted a trespass suit against Steel in 1961 for alleged pollution damage to four of its crops during the years 1955 through 1960. King does not seek damages for crops planted on the lands leased from Steel which it admits are covered by the terms of the exculpatoi’y clause but it does seek damages for alleged injury to crops planted on the lands leased from Warner Company which King alleges are not covered by the terms of the exculpatory clause. Steel raised the exculpatory clause as an affirmative defense in its answer to the amended complaint. King demurred to this defense and moved to have it stricken. The court granted the motion, holding that the exculpatory clause applied only to lands leased from Steel.
In its first opinion, tbe court held that the exculpatory clause was ambiguous. If tbe clause was ambiguous, it should never bave been stricken on demurrer.
Finally, in its supplemental order, the court decided that the exculpatory clause was not ambiguous. We cannot agree with this conclusion. It is not clear what the parties intended when they used the words “lessor shall not be liable . . . for any injury.” Steel should at least be given the opportunity to present evidence, if it can, that the parties intended this to cover injuries to crops grown on the lands leased from Warner.
There is no harm done by postponing consideration of this issue. The trial judge is free later to instruct
Order reversed. Costs to abide the event.
“(l) . . . contracts providing for immunity from liability for negligence must be construed strictly since they are not favorites of the law; (2) such contracts ‘must spell out the intention of the parties with the greatest of particularity’ and show the intent to release from liability ‘beyond doubt by express stipulation’ and ‘[n]o inference from words of general import can establish it’; (3) such contracts must be construed with every intendment against the party who seeks the immunity from liability; (4) the burden to establish immunity from liability is upon the party who asserts such immunity.” 423 Pa. 288, 292-93, 224 A. 2d 620 (1966). See also Galligan v. Arovitch, 421 Pa. 301, 219 A. 2d 463 (1966); Dilles v. Flohr Chevrolet, 411 Pa. 425, 192 A. 2d 682 (1963); Bogutz v. Margolin, 392 Pa. 151, 139 A. 2d 649 (1958); Morton v. Amhridge Borough, 375 Pa. 630, 101 A. 2d 661 (1954); Darrow v. Keystone 5, 10, $5, $1.00 Stores, Inc., 365 Pa. 123, 74 A. 2d 176 (1950); Baldwin v. McEldowney, 324 Pa. 399, 188 A. 154 (1936).
4 Stand. Pa. Pract. ch. 13, §25, pp. 36-37 (1955). See also: Toms v. Bev-Maid, Inc., 420 Pa. 562, 218 A. 2d 300 (1966); Sun Ray Drug Co. v. Lawler, 366 Pa. 571, 79 A. 2d 262 (1951); Moran v. Bair, 304 Pa. 471, 156 A. 81 (1931); Davis v. Investment Land Co., 296 Pa. 449, 146 A. 119 (1929).
Dissenting Opinion
Dissenting Opinion by
I agree with the lower Court that the written lease (1) is clear and unambiguous and (2) only releases United States Steel Corporation from claims by Tenant for any injury, damage, etc., caused by or resulting