Weaver v. American Oil Company

Howard v. American Co. and Homer Hoffer. 3, 1971. Rehearing denied 1271S350. Filed December [No. January 20, 1972.] Byron Kennedy, Warsaw, appel- Bent, C. Herbert H. for lant. Levy May, Crumpacker, May, Searer,

Arthur A. & of South Bend, appellees. for company appellee C. J. In this case the oil

Arterburn, presented appellant-defendant leasee, filling to the station operator, signed by form contract as a lease to be defendant, contained, in addition to the normal leas- ing provisions, provided harmless” “hold clause which operator substance that the leasee would hold harmless and indemnify company any negligence also oil for of the company occurring litigation premises. oil on the leased The company’s employee spraying as a result oil own arises gasoline causing his Weaver and assistant and over them to injured premises. leased burned and on the be This action was by (Appellees) American Oil and Hoffer initiated for a dec- laratory judgment liability to determine the appellant Weaver, the clause in the under lease. The trial court entered holding judgment liable under the lease.

Clause three ^[3] lease reads as follows : agents employees “Lessor, any its shall not be liable for loss, damage, injuries, or one or casualty or other whatsoever kind person property any- caused to the or whomsoever (including Lessee) premises, arising or out off possession use, operation resulting Lessee’s or there- from of, premises apparent whether or from defects existence, use, maintenance, hidden, or the installation from condition, repair, alteration, replacement any removal or equipment thereon, ligent part neg- due in whole or in whether Lessor, agents employees; its acts or omissions of himself, administrators, heirs, executors, and Lessee successors and his for agrees assigns, hereby indemnify hold against agents Lessor, employees, its harmless from (including claims, demands, liabilities, all or actions all suits expenses attorneys’ or im- reasonable incurred fees posed therewith) loss, on the Lessor in connection such damage, all pay injury casualty. agrees to or other Lessee also expenses attorneys’ Les- reasonable incurred fees provi- sor in the event that under Lessee shall default paragraph.” sions only exculpated the It that this clause not will noted negligence, but also company liability its for its lessor oil damages indemnify compelled Weaver to them for negligence. Appel as a incurred its loss result invalid, exculpatory late held the but the clause Court indemnifying provi opinion, clause valid. In our these both together may used to effec sions must be read since one ground through tuate the obtained the other. find no result We any grant petition distinction we therefore the to appeal transfer the to this court. (already in which submitted

This is contract bargaining form) party power. to a with lesser As in this case, may provisions it contain or unconscionable unknown print. are in fine Such the case which is now before the court. high that Weaver had left school after one reveal The facts leasing time, prior years spent the his to serv- a half working skilled and labor station, at various unskilled ice expected jobs. who should be to He was not one oriented meaning technical terms. understand the the know law signing activity of the lease consisted noth- The ceremonious placing agent of ing American the lease in more than the “sign”, saying Mr. front of Mr. Weaver nothing in record to indicate that Weaver There did. agent it; asked lease; Weaver to read read the agent, any manner, attempted to call Weaver’s attention to the “hold harmless” clause the lease. Each year procedure following, salesman, was the same. A Oil, bring Weaver, station, American would the lease to at the sign and Weaver would it. The evidence showed that Weaver prior signing had never read the lease to and that the clauses explained were never himto in a manner from grasp legal significance. which he could their leases were prepared by attorneys Company, of American Oil agents Company, American Oil and the of the American Oil attempted explain Company never to the conditions of the they legal lease nor did advise Weaver that he should consult signing counsel, superior bargaining before the lease. The power patently significance American Oil is obvious and the signature legal upon of Weaver’s document amounted to nothing formality more than a mere to Weaver for the sub- protection stantial of American Oil. goods

Had this case involved the sale of it would been have termed an “unconscionable contract” under 2-302 sec.

Uniform Commercial Code as found in Burns Ind. Stat. sec. 19-2-302. The statute reads as follows: Unconscionable contract or “19-2-302. as a matter contract the court clause. —If any law the contract or clause find have been unconcisonable at the time it was may contract, court made the itor refuse enforce

may remainder contract without the un- enforce may application clause, any or it so limit the conscionable any clause as to avoid unconscionable unconscionable result. appears (2) is claimed or to the court that the unconscionable the When it may be clause contract thereof opportunity present parties shall be a reasonable afforded setting, purpose its commercial evidence effect making (Acts aid 317, court in ch. determination. 539)” 2-302, p. sec. According Text, Official basic test of to the Comment to general whether, light unconscionability commer- is of background particular of cial and the commercial needs case,

trade or the clauses involved are so one-side as to be existing under circumstances at the unconscionable time making of the contract. Subsection two makes it clear proper court upon that it is for to hear evidence these questions. “An ‘unconscionable contract’ has been to be such as defined delusion, man under duress no sensible would or in distress make, and such as no honest man would ac- fair cept. ‘inequality strong, gross an so There exists here impossible manifest, that it is to state it to a man com- of producing inequal-

mon ity without exclamation sense of inadequacy price great it.’ ‘Where the is so of of it, lay slightest the mind revolts at the court will hold advantage oppression circumstances tract.” to rescind the con- of dealings policy the lato to restrict business his own mistakes “It is not of judgment party but to relieve of advantage party necessi- has taken another’s where one ties and distress the with advantage him, obtain an over unfair owing latter, condition, has encumbered to his himself obligation heavy liability or the sake an onerous for inadequate present gain there will a small relief App. 123, McCullough (1933), granted.” 97 Ind. v. Stiefler E.N. exchange for a contract The facts of this case reveal that enforceable, may question which, cost Mr. if the clause damages neg- potentially for of dollars in Weaver thousands ligence cause, operate he was not Weaver must days long hours, a week at a total the service station seven yearly $5,000-$6,000. income of The evidence also reveals heading print clause was in and contained no title fine indemnity have identified it as an It which would clause. justice poor deplorable man to hold a seems a abuse education, attorneys prepared ato contract of Ameri- Oil, presented can for the benefit of American Oil which was “take it on a it or leave basis”. Supreme Frankfurter United Justice States Court question bargaining spoke inequality power in his on the dissenting opinion Corp. in United States v. Bethlehem Steel

463 289, 326, (1942), 581, 599, S. 62 S. U. Ct. L. Ed. principles “(I)t outraged is that said would be familiar if recovery these Bethlehem were denied contracts. But is any principle firmly which is more or more there familiar history Anglo-American law embedded in the than the of permit basic doctrine that the will not themselves to courts injustice? inequity as be used Does instruments of principle application law in our have more universal than doctrine that courts will transactions the not enforce positions parties such that one which the relative the are of unconscionably advantage has taken the necessities of of other?” foreign principles to the law contracts. “These are not only grounds upon physical are duress Fraud and is so law not contracts. which courts The. enforce refuse injustice except every brute primitive that it sanctions force generally specifically, downright the courts More fraud. ‘bargain’ a themselves to the to lend enforcement refuse advantage unjustly eco- party taken in which one has ” . . .’ the other nomic necessities of bargaining is the result The traditional contract of free market, together by play brought parties are who eco- footing approximate on a and who meet each other danger society equality. there no In such is nomic as be a to the social order contract will threat freedom of present-day standard- a whole. But in commercial life primarily appeared. It is used ized mass contract has position. bargaining power enterprises strong with frequently good services, party, or is weaker in need position terms, be- shop either not in a around better monopoly contract has cause author the standard competitors (natural artificial) all use or because same clauses. nearly twenty written

Judge dissent was Frankfurter’s philosophy which the years ago. represents direction and It accept taking compelled now and is law, at time society principle known as over old modern in our an parole rule states that parol evidence evidence rule. The agreement contract, signed by parties, conclusively presumed integration represent meeting minds of the parties. This is an archaic from the old rule common objectivity only law. The of the rule has its merit its sim- plicity application outweighed by which is far its failure many represent agreement, cases particularly actual prepared by where a party form one contains hidden party signed. clauses unknown to the other is submitted and subjective understanding The law should seek the truth the parties enlightened age. of the in this more The burden should party submitting on package” be such “a in form party knowledge to show that the other had unusual or unconscionable terms principle contained therein. The should applicable be the implied same as that warranties, namely, to goods package that a purchaser pur- sold to a is fit for the poses intended and contains no harmful materials other than represented. that Caveat lessee is no more the current law emptor. Only than caveat way justice in this can be served meaning and the true of freedom preserved. of contract The analogy is previously pointed rational. We have out a similar in situation Code, Uniform Commercial prohibits agreements. unconscionable contract clauses in sales party a contract, sought When can show that the which is enforced, in one, to be fact an unconscionable due to a bargaining

prodigious power amount of on behalf stronger party, stronger party’s which is used to the

advantage and is causing unknown to party, lesser great hardship party, a and risk on the lesser the contract provision, whole, provision contract a as if the is not separable, grounds should not enforceable on the be that provision contrary public policy. party seeking The showing enforce such a contract has the burden of that provisions explained party were to the other came his knowledge voluntary a meeting and there was fact real and merely objective not meeting. minds and an

Unjust provisions contract unenforceable, have been found contrary policy, grounds being public past, in the bargaining greater superior position. In party has where (1964), App. 136 Ind. Railroad Co. v. Kent Penn. Judge speaking court said that Hunter, 2d

N. E. although “parties rnay into proposition enter such may arrangements they may be conceded as desire contractual agreement may special general sense; yet in the when such affecting public thereby contravene interest and result governing abrogation common policy, the of the public rules against.” guarded zealously carriers must say parties may not infer that make mean to We do not negligence provid exculpating one of his contracts knowingly ing indemnification, it must be done but willingly in insurance contracts made for that as very purpose. justice duty

It courts to is the of the administer enforcing case, performed, written role is not parties instrument, really agreement although signed by here, shown the evidence yield parties. parol The evidence rule must equities appeal this court is transferred to the case. judgment trial court reversed with direction and the is judgment appellant. to enter for the dissents,

Givan, DeBruler, JJ., concur; J., Hunter, Prentice, opinion. with

Dissenting Opinion diametrically those opinion opposed to My is J. Prentice, Appellate as set majority and Court herein of of both no 663. There is and 262 N. E. 2d E. 2d in 261 N. forth Appellate and, Court support since the decisions of the law to majority support opinion no facts I contend there are necessary it, therefore, this record Court, is to burden of findings only setting special fact by of of forth not findings arguendo, add, additional also to court trial but (appellant) that the defendant contends were either admitted proved. or facts, specially as found the trial court were as

follows: plaintiff, Company, “1. That the American Oil is a cor- organized existing

poration laws of ized licensed and authorized Indiana on the 5th and under and virtue of the Maryland of is State and licensed and author- do within the State of business Indiana and was so to do business within the State of day September, including of day April, 27th of day 2. That Homer April, Hoffer on 27th agent employee Company. of American Oil defendant, Weaver, 3. That the Howard was on the 5th day and September, 1961, age years over an adult of 21 operating was able read and write and had been filling station since 1956. day 4. That or about the 5th September, 1961, the plaintiff, Company, American Oil defendant, and the How- Weaver, ard enter into a did certain written lease plaintiffs’ complaint designated attached to the as ‘Ex- A’, filling hibit of a equip- lease certain station and ment known as lots number 346 and 347 as shown on the plat Beiger Farm, City recorded 5th Addition to the Mishawaka, Joseph County, Indiana, commonly St. State of Lincolnway East, known and Indiana; Mishawaka, described as plain- and that under the terms of said lease the tiff, Company American Oil was the lessor and the defend- ant, Weaver, Howard lessee said above described premises equipment and that there was contained in following paragraph said numerical 3: ‘Lessor, agents employees its shall not be liable for any loss, damage, injuries, casualty other or of whatso- ever caused, person kind or whomsoever to the or property anyone (including lessee) prem- on or off the ises, arising session or resulting use, pos- out or from Lessee’s operation thereof, prem- or from defects in the apparent installation, ises hidden, whether or existence, use, maintenance, alteration, condition, repair, replacement equipment thereon, removal whether part negligent due in whole or in acts or omissions Lessor, agents employees; of self, its Lessee him- heirs, executors, administrators, his successors and assigns, Lessor, hereby agrees indemnify its hold and agents employees, against and harmless from and all claims, demands, liabilities, (including suits or actions all expenses attorneys’ reasonable and fees incurred imposed loss, damage, injury to therewith) on the Lessor connection for such casualty, agrees or other Lessee also pay expenses attorneys’ all reasonable and fees incurred by Lessor in the event that Lessee shall default under the provisions paragraph.’ of this day April, about 27th 1962 in 5. That said including quoted finding paragraph

lease, numerical 3 as Company above, American number between Oil and How- was in full force and effect and was a ard enforceable valid Weaver parties. and contract and between the day April, the 27th 1962 the 6. That on or about Hoffer, employee plaintiff, agent, servant and Homer as the prem- plaintiff, Company, Oil went on the of the ises American subject was the matter of said lease between Company pur- Oil Howard American pose and gasoline pumps repairing located thereon certain gasoline during pumps repair and the and that demonstration of said gasoline sprayed over and about thereof Weaver, defendant, em- person and his of the Howard causing Miller, ployee, each them to be burned Donald injuries. personal and to suffer certain damages injuries personal have That for claims against Company plaintiffs, been made American Hoffer, of such and lawsuits filed for the collection Homer damages Court, Joseph Howard Circuit known as the St. Company, American Oil J. known Homer Hoffer and Weaver vs. Superior Joseph C-1864, as Cause the St. No. Court, Amer- Homer Hoffer and known as Donald Miller vs. That said Company, No. ican Oil known as Cause C-1955. inju- damages personal recovery complaints seek the allegedly Miller and Donald ries suffered and sustained alleged Weaver, by herein, reason of Howard the defendant negligence Company plaintiffs herein, American Oil and Homer Hoffer. defendant, plaintiffs tendered to 8. That have of said above Weaver, of each herein the defense Howard that Howard Weaver and have demanded described lawsuits agent, Company its plaintiffs, American Oil

hold the against Hoffer, said employee, harmless Homer servant Howard demanded that and have also lawsuits claims Company and of American Oil Weaver assume defense pursuant to nu- claims lawsuits and Homer Hoffer in said in full force paragraph merical 3 of said lease which day and effect on the 27th of the the date April, alleged injuries incident which resulted in Howard subject Weaver and Miller Donald and is the matter of said pending lawsuits. Weaver, defendant, refused 9. That the plaintiffs, Howard has Company Oil Homer American and hold the Hoffer, of American Oil suits the defense harmless from said claims assume Company Homer Hoffer the law- brought against them. existing justifiable controversy That an exists 10. actual legal having parties interests hereto adverse between the controversy which is as follows: plaintiffs a. claim con- The virtue of terms by 1961 tained the said written lease entered into and between parties day September, 5th which day April, in 1962 which 27th full force and effect on or about the designated as Exhibit A. said written is of- plaintiffs’ complaint attached to the and which plaintiffs’ Exhibit fered and as introduced into evidence 1, defendant, thereof, the the particular paragraph and in numerical obligated Weaver, undertake Howard is plaintiffs plaintiffs harmless defense and to hold the legal fees, any expenses, suit, dam- from all costs of judgments ages, plaintiffs de- and to reimburse the of the defend- fense costs as result heretofore incurred plaintiffs in the refusal ant’s to assume the defense of the following pending: presently claims lawsuits Oil Hoffer and American J. vs. Homer Howard Weaver Company, Court. C-1864, Joseph Circuit as St. known Cause No. American Oil Com- Miller vs. Homer Hoffer and Donald Superior Joseph C-1955, pany, known as Cause No. St. Court, any payments, ex- plaintiffs said for reimburse and to fees, attorneys’ including costs, not penses, which but limited paid of said may as result incurred or have been pending lawsuits. claims defendant, Weaver, is claims that he Howard the b. The actions obligated or to plaintiffs in causes of said to defend hold or to represent plaintiffs in said actions any judgments, costs plaintiffs and all harmless the of or awards any claims legal judgments other suit, fees, damages, pending may said be obtained costs plaintiffs the defense reimburse actions of the written terms reason incurred heretofore plaintiffs’ complain lease which is attached to the and des- ignated Exhibit A as which has been admitted into evi- designated plaintiffs’ dence in cause as Exhibit this existing controversy 11. That actual between there parties litigation protracted the unless resolved by hereto which result in will determined in this Court action legal terms, obligations obligations construction duties and pursuant parties hereto to the terms particular paragraph of said written lease and in numerical thereof.” arguendo following: are the facts assumed day August, 1956, the 1st “A. That on or about Weaver, lessee, as entered into a Howard defendant written lessor, Company, plaintiff of American lease with the filling under lease the said Weaver leased a terms which certain equipment from and certain said defendant for station filling year, equipment being period station of said and one Lincolnway City Mishawaka, East in at 2000 the of located being legally Indiana, premises as said described lots num- Beiger plat the of and 347 as shown on recorded bered 346 Addition, City Farm, Mishawaka, Joseph of Fifth the St. County, State of Indiana. August 1, 1959, B. date That on or about the the term expired, referred to said lease of said lease above the by period year; parties renewed for a of one that on the again August 1, 1960, lease or about said renewed for year; September 1961, 5, a term of that on one said lease again by period was year, renewed and lessee for a of lessor one commencing August 1,1961, the term of said lease 1962; original July expiring about 31, that dated on August 1958, including 1, lease, and each renewal the for the except September lease dated were identical term thereof. by into and between the lease entered That each C. Company and the defendant Howard

plaintiff Weaver nished and Oil American on a lease form fur- forth was as above set by plaintiff. prepared premises plaintiff leased American said D. That the lots, upon which Company consist two said Weaver Oil servicing containing building, a service room is located a lessee for the use of and a room vehicles sales motor selling the products and business of lessor’s in the conduct for by not covered products; land display of said area gasoline pumps are building paved; that three is said paved portion penalises, said of the leased located on which manually electrically gasoline pumps, pump activated when storage underground tanks into customers motor ve- underground storage hicles, storage the said tanks have gallons capacity gasoline; thousand of five that the ex- building red, terior of said is of distinctive white blue design filling and is the trademark all stations color owned or leased by plaintiff Company; American Oil that large part word ‘Standard’ in letters is the exterior large sign building; that a of said ‘Standard’ said sign electrically night; premises, can at illuminated gasoline pump equipment em- and other contain indicating the same connected with blems and other names plaintiff Company parent American Oil or its Oil Standard Company. equipment operation That the main E. used filling including hydraulic station, building, lift said lubricating greasing equipment, lighting equip- signs, compressor, ment, Company the air Standard gasoline pumps, hoses, except the and the nozzles on the underground storage are tanks, plaintiff all are owned part premises. lease as a the leased included in the Company wholly plaintiff F. That American Oil is a subsidiary Company Indiana, owned is Standard’s of Standard Oil marketing operating company, Standard Oil Company products except in all states Alaska and Hawaii through retail stations; twenty-five company over thousand owned or leased being commonly filling outlets, known as said outlets gasoline products and related for the automo- through plaintiff tive millions of consumers main hicles said outlets to trade are marketed consisting daily, said customers operators of motor vehicles who drive their said ve- filling upon premises stations have known gasoline petroleum and said vehicles serviced and filled with along Company plaintiff products; American Oil Indiana, Company company parent Oil of with its Standard largest petroleum refiners and distributors of is one products in world. agreement, 2 here- said lease clause number G. That keep equip- requires of, Howard lessee Weaver machinery appliances good repair; ment, in order and and notwithstanding 2, after number the execu- said clause August 1956, 1, and in- and to dated tion of the said lease day cluding April, 1962, plaintiff American 27th of keeping obligation Company and burden Oil assumed

471 equipment, machinery appliances good the said and in order repair Company’s expense. at American Oil own during H. That the entire adult life defendant How- Weaver, up including ard to and the date the first lease be- plaintiff tween the and defendant Weaver was executed on day August, 1956, or about 1st Howard .the Weaver had laboring working man, been ployee ness at manual labor as an em- during of others that said time he had had no busi- j managing experience operating business, his own examining nor had or experience to had education in- terpretating agreements; lease that the defendant Howard completing Weaver’s formal education consists of his nine grades public school. plaintiff when defendant Howard I. That Weaver and Company entered into the said American Oil August 1, by quested lease dated agreement was handed the he agent plaintiff Company American Oil re- who sign same, Weaver to Weaver did. Weaver requested lease, nor was he did read to read it plaintiff plaintiff out to defendant Weaver that clause Company, point American nor did said 3 number of said lease provision, harmless’ contained a so-called ‘save and this same subsequent procedure was followed as each lease was exe- parties. said That cuted defendant Howard Weaver did knowledge of not have actual the contents of clause 3 injured April until after he said lease J. That defendant Howard annual net Weaver’s income filling operation of the from the said leased station from including $5,500.00 between $6,500.00. indemnity provisions K. That of clause number 3 agreement imposed upon of said lease defendant Howard potential liability greater completely than, far to, flowing proportion out of benefit said defendant agreement. from said lease L. operation filling That the maintenance sta- tion, gallons gaso- and the of thousands of maintenance underground storage tanks, pumping line and the of said gasoline storage through pumps from said tanks mechanical ground ground below the to above the for the use consumers, danger general public. involves risk and to the required M. That clause number of said lease defend- machinery, keep equipment ant Howard Weaver to 472 good premises, order

appliances, said leased located on expense.” repair at own Weaver’s law foregoing, conclusions of Upon trial court stated plaintiffs (appellees). judgment The con- rendered plain- clusions, substance, that the law with the were indemnifying exculpatory provisions of and that the tiffs American, defendant, were plaintiff and lease between the against the defendant. enforceable Appellate enforce Court would not The decisions although theory that, agreement upon exculpatory consistently exculpatory provisions refused to void has Court being contrary public policy, their burdens unusual they appears unless considerable, should not be enforced it the burden under the clause was aware party who assumes reaching implications. burden its far The of it and understood vary awareness, it, depending lack of proving would such bargaining positions parties. upon in- relative The enforceable, by demnity provision, however, reason was held manageable. availability rendering the risk of insurance found, although never The facts as are that the defendant lease, ample opportunity to and to obtain read the he had do so general only A in effect not in Indiana but else- counsel. rule where, signs person contract, a is that who without bother- v. ing same, to read the be bound its terms. Welsh will Kelly-Springfield (1938), 188, 12 2d Tire Co. E. 213 Ind. N. v. 434, 254; Chipman (1931), Walb Construction Co. 202 Ind. Givan v. 132; 175 N. (1898), E. Masterson 152 Ind. v. 237; (1886), Keller N. E. Orr 106 Ind. N. E. 195. regard or not of its to whether he was aware con- Without obligations tents, of his person will be relieved under con- falling categories: main circumstances into two under tract (1) contract is not enforceable because of occur- where the concealment, (fraud, etc.) surrounding its or omissions rences (2) and where the contract not enforceable be- execution subject (illegality the contract the nature cause of matter). subject Appellate recog- Court would have us category performance, nize a third and excuse at least as to provisions, showing harsh without a that he was aware of and provisions implications, understood the contract their with proof upon vary depending upon of burden such issues to bargaining positions parties. objective of relative laudable, it, nevertheless, totally a I of such but think rule unworkable.

The identical clause which Defendant here seeks to avoid against public policy Loper held to be in the case of 84, (1965), App. Standard Co. 211 Ind. N. E. 2d v. attention, however, Henningsen, 797. Defendant directs our to Motors, Inc., et al. v. (1960), 358, et al. 32 N. J. Bloomfield 69, 161 A. 2d Contract, A. L. R. 2d cited in Jur. 2d Am. where, according Defendant, to “It it is said: has been § given limiting liability rigid scrutiny by held that clauses are courts, be and will not enforced unless the limitation is fairly honestly negotiated understanding^ entered Appellate accepted into.” The Court has this statement at face although appears authority value there to be no Indiana in support given of application such rule. It has been limited in jurisdictions and, limited, appears other to be reasonable appears But the workable. defendant mislead us to failing complete quotation, completed which is as fol- “* * * especially lows: this is true where the contract in- public semi-public volves services nature, of or but has also applied been in involving some private contracts, controversies particularly where, public as in the semi-public case of or private only par- contract the contract is the means one filling important ties has an need.” (Emphasis added). The Henningsen against case involved an action a consumer automobile, vendor wherein the court declined to enforce provision provided the sales contract that the ex- press warranty was in lieu of all expressed implied. others application The case has no to the appeal. issues raised on this court, together Neither do the facts as found the trial with bargaining suggest disparity mentioned, additional facts warranting exceptions application to reason- positions against my concept rules or offend able and well established negotiations. general disparity economic A of fair business along considered positions, intellectual factors while give themselves, cases, not, do with others in such an unconscionable ad- is dominant in such attributes one who vantage particular not the Whether or transaction. by Defendant, “understandingly contract was entered into” nothing we, course, say; to indicate that cannot but we see by any opportunity deprived understand it he strange, It be a of American. would acts omissions party were to my opinion impossible, rule to a contract if one guardian him for accountable to of the other and be held the gain advantages hoped the risks he thereunder and both the may such a have failed consider. Under or losses he rule, provisions con- less one knew the written the executed, position his in he the would be tract which better event of later dissatisfaction. the Arterburn, majority speaking of this for a

Chief Justice Court, in has that the defendant an inferior concluded was position respect lease we with to the lease and treats the as might justification I for treat an adhesion contract. find has been drafted An adhesion contract is one that neither. unilaterally presented party on a the and then dominant party, it” the has no “take it or basis to weaker who leave 2d, bargain (Restatement opportunity to real about its terms. e) 10, a, (C.J.S. Contracts 322 Comment Conflict of Law § § printed prepared a form contract have p. 581). we Here great disparity between the economic There American. Defendant, Defendant positions American background. business How- limited educational man of nothing can find or infer that ever, from which we there subject negotiation provisions not were to the lease, particular not Defendant was that, respect with bargaining position in equal that of American. The fact opportunity that Defendant did not avail himself of the agreement accept presented read the but elected to it as does only options not warrant the inference that his were to “take might it or leave it.” That the “hold harmless” clause was suggested by print, majority, been small as the can have light hardly significance finding have claim and that the any portion defendant did not read of the document. great majority places dissenting upon opin- reliance Corp. ion of Bethlehem Justice Frankfurter U. S. v. Steel 289, 599, (1942), 855, U. S. Ct. 86 L. Ed S. agree I opinion it is a well reason philosophy expressed great impact upon there had has parole rightfully However, evidence rule and I so. find no similarity between the actual situations under consideration. case, security In the Bethlehem Steel national United hung States in the balance while the terms of the contract in question negotiated. Although negotiators were government accepting pro- had a theoretical choice between posed taking operation contract or Bethlehem, over subjected grave latter peril the nation to such to amount clearly no choice at all. Bethlehems’ actions amounted to taking advantage of an unconscionable of the circum- stances, authority ample relieving and there was government thusly of the harsh terms coerced. The court there merely had apply principles the fundamental of law that the bargain party courts will enforce a where has one uncon- scionably advantage taken of the necessities and distress of the bar, other. In case at compul- the defendant was under no nothing to There is sion act. to indicate that he was motivated by any purpose improve other than posi- to his own economic arrangement tion, that the lease was to be more beneficial to him, to financially, American than that he was intellectually emotionally or incompetent disadvantaged, or that his neces- potential any way sities distress were in involved or that particular transac- bargaining position respect to this with his substantially equal tion, to American. that of Pennsylvania, (1964), Kent Railroad Co. v. The case of the as it application, no App. 198 N. has 136 Ind. E. 2d public rules and the upon an interest was determined issue of governing uniform Also, it that the common is clear carriers. majority by can commercial code sections on sales cited careful application; have Arterburn no and Chief Justice only point the ac- to to illustrate out that it was referred to fostering legal ceptance philosophies permitting fair dealings justice and often rather blind substantive than unjust have neither to But we adherence hard and fast rules. right principles when- duty nor to abandon established necessary hardship. And ever, judgment, it to avert in our both, Legislature vest us either see fit to with should the this It is for requisite wisdom. question I we have simply administer believe, I mandate is not reason, that our special interest justice I hold under the law. no but to do so exculpa- enforcing indemnity policy preserving greatly they cur- tory may contracts. It well be that should majority opinion Defendant’s But does not hold. tailed. advantage spring dilemma an unconscionable does not from of a virtue him either deceit of American or taken of clearly bargaining either an from superior position. It stems unwillingness re- upon part utilize the his indifference willingness to assume him or sources available to gain. exchange Pre- hoped risks in for the rewards that he major- sumably for, he has had the benefits contracted grant ity retrospective contractual unilateral decision is a premium places immunity speculative and careless and to the as an invitation ignorance. it will stand I fear upon finding litigant his con- who, himself burdened own provisions say tract, understand its that he did not will right nor duty, we have neither for relief that ask us grant. wisdom cause, accept aside the decision transfer of set

I would Appellate Court, modified, and affirm the decision of the trial court. Reported in 276 N. E. 2d 144.

Note. —

Huey Jackson v. State of Indiana.

[No. 171S17. Filed December 1971.]

Case Details

Case Name: Weaver v. American Oil Company

Court Name: Indiana Supreme Court

Date Published: Dec 3, 1971

Citation: 276 N.E.2d 144

Docket Number: 1271S350

Court Abbreviation: Ind.