Fidelity Bank v. Tiernan

375 A.2d 1320, 249 Pa. Super. 216, 1977 Pa. Super. LEXIS 1995

• Court: Superior Court of Pennsylvania
• Decided: June 29, 1977
• Docket: 1930
• Status: Published

Opinions

SPAETH, Judge:

Four members of the court are in agreement that the judgment of the lower court cannot stand. The President Judge and I would enter judgment n.o.v. Judge HOFFMAN and Judge CERCONE, however, would only grant a new trial; they do not find it necessary to decide the issue that the President Judge and I regard as dispositive. In these circumstances, so that there may be an order supported by a majority of the court the President Judge and I concur in the granting of a new trial. The reasons for a new trial are stated in Judge HOFFMAN’s opinion; the reasons for judgment n.o.v., in this opinion.

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George Tiernan died in 1933, leaving the residue of his estate to the Fidelity Bank in trust, to be divided into two equal shares, one for his son Walter, and the other for his son Arnold. With respect to each son, the Bank was to pay income on the son’s share to the son for his life, and on the son’s death to his widow, and on her death to “all my grandchildren then living . . ., said income to be paid until each of said grandchildren shall attain the age of twenty-five years . . .. As each grandchild attains the age of twenty-five years, his or her share of principal shall be promptly distributed to him or her . . . .” (Record 128a-129a)

Walter died a widower in 1963. At that time “all [of George’s] grandchildren” were: Walter’s two children, Walter F. and Margaret; and Arnold’s three children, Arnold G., Elizabeth, and Edith. All of these grandchildren were over 25. Accordingly, on Walter’s death the Bank should have divided the principal of his trust into five equal parts, and distributed one part to each grandchild. Instead the Bank divided the principal, which amounted to some $62,000, into two equal parts, and distributed one part to each of Walter’s children, Walter F. and Margaret. Thus, Walter F. and Margaret each received some $31,000; they should each have received only some $12,000, with Arnold’s children, Arnold G., Elizabeth, and Edith, also each receiving some $12,000.

This improper distribution of the principal of Walter’s trust was accomplished informally, that is, instead of filing its account for audit by the Orphans’ Court the Bank procured the signatures of Walter F. and Margaret to a “Receipt, Release and Waiver of Audit.” This document, which was prepared by the Bank, opens by reciting, “We, the undersigned, being the sole parties in interest in this Trust . .” As just noted, this recitation was not accurate. The, document goes on to provide that “for the purpose of inducing the Trustee [the Bank] to make a distribution without a Court audit,” Walter F. and Margaret:

1. Acknowledge that we have examined the Trustee’s account and approve the same .

2. Acknowledge receipt of principal in the amount of $62,225.12 ....

3. Agree to indemnify the Trustee against all liability, loss or expense which may be incurred as the result of the settlement of this Account, or of the distribution being made upon this Receipt and Release to the extent of our share, and

4. Waive an accounting of this Trust in the Orphans’ Court .

(Record 134a)

Arnold died in 1968, survived by his widow and three children. This time, however the Bank filed a formal account in the Orphans’ Court. The Orphans’ Court adjudicated the account on December 10, 1971, awarding the principal of Arnold’s trust back to the Bank in further trust for Arnold’s widow. Incident to this proceeding, evidently in August 1971 (Record 137a- 138a, 156a), the overpayment to Walter’s children was discovered.

On March 10, 1972, the Bank filed a formal account in the Orphans’ Court of Walter’s trust. On October 19, 1972, the Orphans’ Court adjudicated that account. The adjudication held that “[t]he testator’s will . . . clearly and plainly pertinently provides for the distribution of income after the death of Walter and after the death or remarriage of his wife . . . equally to all of the testator’s then living grandchildren . . ..” (Record 139a; emphasis in original.) Accordingly the court ordered the Bank to distribute the principal of Walter’s trust equally to all five grandchildren. Since the Bank had already distributed the principal to Walter’s two children, this meant that it was surcharged some $36,000 ($12,000 for each of Arnold’s three children), with interest from July 19, 1963, which was the date of the Receipt, Release and Waiver of Audit and distribution to Walter’s children. (Record 145a)

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The foregoing facts presented the Bank with a choice. First, the Bank could proceed against Walter F. and Margaret in assumpsit for breach of their express promise, made in Paragraph 3 of the Receipt, Release and Waiver of Audit, “to indemnify the [Bank] against all liability, loss or expense which may be incurred as the result of the settlement of this account . . . .” Second, the Bank could proceed against Walter F. and Margaret for restitution. As a matter of pleading, this would also be in assumpsit. 1 Standard Pennsylvania Practice (Rev. ed. 1960) ch. 3, § 29; Restatement of Restitution § 5 (1937). As a matter of theory, however, it would differ from the proceeding on the Receipt, Release and Waiver of Audit in that it would not depend upon proof of breach of an express promise but on whether as a matter of equity it was unjust for Walter F. and Margaret to retain the benefit they had received as a result of the Bank’s overpayment to them. Restatement of Restitution, Part I, Introductory Note, and § 1. Or third, the Bank could combine these two proceedings, for example by suing in Count 1 of its complaint for breach of the express promise to indemnify and in Count 2 for restitution. Pa.R. Civ.P. 1020(a), (c).

In fact the Bank chose the first of these three possible procedures, and on April 4, 1972, it filed a praecipe for summons, followed on May 5, 1972, by a complaint in assumpsit for breach of the express promise to indemnify. (Record la, 3a-4a) Paragraph 1 of the complaint pleads George Tiernan’s will. Paragraphs 2 and 3 identify his five grandchildren (Walter’s two children, and Arnold’s three). Paragraph 4 pleads the Receipt, Release and Waiver of Audit. Paragraph 5 states that the principal of Walter’s trust “should have been divided among all five of the grandchildren.” Paragraph 6 states that “[a]s a result of the distribution” made pursuant to the Receipt, Release and Waiver of Audit, Walter F. and Margaret each “received $19,003.19 more than the amount to which they were entitled.” And paragraph 7 quotes the express promise made by Walter F. and Margaret in Paragraph 3 of the Receipt, Release and Waiver of Audit to indemnify the Bank. Wherefore judgment is demanded in the sum of $38,006.38.

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It is important to understand that in deciding to sue for breach of the express promise to indemnify, able counsel gave the Bank its best chance. There are two reasons why this is so.

First, the scope of the material evidence would be narrower, and this would favor the Bank. In a suit for restitution, the respective equities of the parties would become material, for whether it is unjust for one to retain a benefit will depend upon all the circumstances. Thus the right to restitution may be lost because of one’s delay, Restatement of Restitution § 64, or because of laches, id, § 148, or because of a change in the circumstances of the person who has received the benefit, id. § 69. It could be anticipated that factors such as delay and change of circumstances might favor Walter F. and Margaret, and in fact they did testify to that effect. (Record 52a -53a; 62a-64a) If the suit were for breach of the express promise to indemnify, however, such testimony should be immaterial, for the issues would not be equitable but would rather concern only the meaning and validity of the promise.

Second, and more decisive than these evidentiary considerations, a suit for restitution would be barred by the statute of limitations, whereas it is at least arguable that a suit for breach of the express promise to indemnify would not be.

That a suit for restitution would be barred may be seen from Montgomery’s Appeal, 92 Pa. 202 (1879). The administrators of the estate of William Montgomery overpaid his widow Matilda. The overpayments occurred during 1870 and 1871; they were made voluntarily by the administrator, and “[n]o refunding bond, or agreement to repay, was asked for . . . .” Id. 92 Pa. at 204. In 1876 one of the administrators, A. J. Montgomery, made a voluntary assignment in trust for creditors. Pursuant to this assignment certain land was sold in which Matilda had an interest. The auditor, however, refused to pay the amount of this interest to Matilda, arguing that she was indebted to A. J. Montgomery because of the overpayment he had made her when he was one of the administrators of her husband’s estate; as it happened, the overpayment exceeded the amount of her interest in the land sold in settlement of Montgomery’s assignment for creditors. The lower court upheld the auditor. On Matilda’s appeal, the Supreme Court reversed. The Court held that the creditors (whose rights the auditor represented) were not entitled to set-off against Matilda

for the reason that A. J. Montgomery could not himself recover the money back [i. e., the overpayment he had made to Matilda]. The payment was voluntary, and it is barred by the Statute of Limitations . . . The auditor and court below were of opinion, however, that the statute did not begin to run until the overpayment was discovered, to wit: in 1876. But when an administrator pays out money, he is presumed to know the condition of the estate. The assets are in his hands, and he is familiar with their amount and value. He ought to know, and is chargeable with knowledge, of the amount of claims against the estate, when he makes a payment on account of a distributive share. It would be a great hardship upon distributees, to whom an administrator has voluntarily made payments on account of their shares, if they may be called upon for repayment after the lapse of years. They may have spent it, or increased their style of living in entire good faith, and in ignorance of any overpayment. We are of opinion that the statute commences to run against the administrators from the time of such payments.

Id.Id. 92 Pa. at 206.

Here, the Bank made the voluntary overpayment to Walter F. and Margaret on July 19, 1963; its praecipe for summons was not filed until April 4, 1972.

It was remarked above that “it is at least arguable” that the Bank avoided the bar of the statute of limitations by deciding to sue for breach of the express promise to indemnify instead of for restitution. This expression was used by way of noting the disagreement between Judge VAN der VOORT and Judge HOFFMAN, regarding the statute of limitations. Judge VAN der VOORT has concluded that the Receipt, Release and Waiver of Audit is under seal and that therefore the appropriate limitation period is twenty years. Dissenting at 1331-1332. Judge HOFFMAN in his concurring opinion, at footnote 2, has concluded that no seal having been pleaded, none is in evidence, and that therefore the appropriate limitation period is six years. He goes on to say, however, that even so, the Bank is not barred because the statute did not start to run until the Bank suffered a loss. Regarding this latter point: The express promise to indemnify was not simply to indemnify against loss but “against all liability, loss or expense which may be incurred . (Record 134a, emphasis added.) Query: Did the Bank incur a “liability” to Arnold’s children when it made its improper distribution in 1963 to Walter’s children? If so, perhaps the statute began to run then, in which case, if Judge HOFFMAN is right about the six years, even an action for breach of the express promise to indemnify is barred.

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So far as the statute of limitations is concerned, it is unnecessary to choose between Judge VAN der VOORT’s and Judge HOFFMAN’s opinions. It may be assumed either that Judge VAN der VOORT is right that the appropriate limitation period is twenty years, or that Judge HOFFMAN is right that it is six years, and that he is also right that the statute did not start to run until the Bank suffered a loss. In other words, one may accept as correct the judgment of the Bank’s counsel that if they sued for breach of the express promise to indemnify, instead of for restitution, the action would not be barred. Even so, the action must fail.

Since the action is not for restitution but for breach of the express promise to indemnify, one must look to the language of the promise. Doing so, one will observe that the language does not include a promise “to indemnify the [Bank] against all liability, loss or expense which may be incurred as the result of [the Bank’s own negligence in] the settlement of this account . . . .”¹

The omission of such an express promise to indemnify the Bank against the results of its own negligence does not trouble the dissent, which, without citation of authority, simply states:

The appellants [Walter F. and Margaret] next argue that the Bank’s action is “insufficient as a matter of law” since the claim for indemnification on the contract is based upon the Bank’s own negligence. [We] have heretofore recited the exact words of the indemnification agreement, which broadly, but with clarity, evince the appellants’ intent to indemnify the Bank against any liability, loss, or expense arising due to the distribution. There is no language excluding situations caused by appellee’s negligence from the appellants’ assumption of indemnification liability. [We must reject] appellants’ claims that the indemnification language is unclear, susceptible to differing interpretations, or otherwise ambiguous in conveying the intent of the parties to the instrument.

Dissenting at 238.

This statement misses the critical point of this case, which is not that “[t]here is no language excluding situations caused by [the Bank’s] negligence” (emphasis added), but that there is no language including such situations. If, in other words, a party is to be indemnified against the results of its own negligence, the contract upon which it relies must provide for such indemnification in so many words. Here the contract — the Receipt, Release and Waiver of Audit— does not so provide. Therefore, the Bank may not recover in a suit based on the Receipt, Release and Waiver of Audit.²

This statement of the law is long-settled. Thus, in Crew v. Bradstreet, 134 Pa. 161, 169, 19 A. 500 (1890), the Supreme Court said:

fast that he might just as well not have read it. Nor has the Bank really contended otherwise. See, for example, Walter F.’s and Margaret’s testimony that in 1971 one of the Bank’s vice-presidents told them that the Bank had “made a boo boo.” (Record 51a, 61a)

Contracts against liability for negligence are not favored by the law. In some instances, such as common carriers, they are prohibited as against public policy. In all cases, such contracts should be construed strictly, with every intendment against the party seeking their protection.

In applying this statement, the Supreme Court and this court have dealt with a wide variety of contracts asserted to be effective to protect one from the results of ones own misconduct. Sometimes the contract has been in the form of an exculpatory clause in a lease, see, e. g., Kotwasinski v. Rasner, 436 Pa. 32, 258 A.2d 865 (1969); Employers L.A.C. v. Greenville B. Men’s A., 423 Pa. 288, 224 A.2d 620 (1960), and sometimes in the form of an indemnity clause, see, e. g., Perry v. Payne, 217 Pa. 252, 66 A. 553 (1907). Nothing, however, turns on this distinction. Thus, in Dilks v. Flohr Chevrolet, 411 Pa. 425, 435 n. 11, 192 A.2d 682, 687 n. 11 (1963), the Court said:

While an exculpatory clause — which deprives one contracting party of a right to recover for damages suffered through the negligence of the other contracting party— differs somewhat from an indemnity clause — which effects a change in the person who ultimately has to pay the damages — yet there is such a substantial kinship between both types of contract as to render decisions dealing with indemnity clauses applicable to decisions dealing with exculpatory clauses, and vice versa.

Sometimes the result of the misconduct has been monetary damage to a business, see, e. g., Camden S. D. & T. Co. v. Eavenson, 295 Pa. 357, 145 A. 434 (1929); Crew v. Bradstreet, supra, sometimes personal injury, see e. g. Perry v. Payne, supra; Spallone v. Siegel, 239 Pa.Super. 586, 362 A.2d 263 (1976), and sometimes, most commonly, injury to property, see, e. g., Kotwasinski v. Rasner, supra; Employers L.A.C. v. Greenville B. Men’s A., supra; Galligan v. Arovitch, 421 Pa. 301, 219 A.2d 463 (1966); Dilks v. Flohr Chevrolet, supra; Morton v. Amhridge Borough, 375 Pa. 630, 101 A.2d 661 (1954); Schroeder v. Gulf Ref. Co. (No. 2) 300 , 150 A.2d 663 (1930); Warren C. Lines, Inc. v. United Ref. Co., 220 Pa.Super. 308, 287 A.2d 149 (1971). Neither, however, has anything turned on these distinctions. Whatever the contract, the Supreme Court and this court have uniformly held that one will not be protected from the results of one’s own misconduct unless the contract provides such protection in so many words.

The rigor with which this principle is to be enforced is illustrated by Crew v. Bradstreet, supra. There the contract provided that “the said company shall not be liable for any loss or injury caused by the neglect or other act of any officer or agent of the company [in procuring certain financial information].” It might seem that this language did in so many words provide protection from the results of one’s own negligence (“neglect”). Not so. Said the Court: “This contract provides for exemption for the negligence of the officers and agents of the company, but not from its own.” 134 Pa. at 169, 19 A. at 500 (emphasis added). If it .be suggested that this is strict construction with a vengeance, the reply is that indeed it is: that is the point.

All of the cases show that in construing a contract a court must not do what the dissenting opinion here would do. Protection from the results of one’s own negligence must not be found on the basis of general language; if found at all, it must be found in language so clear as to remove any doubt that the other party to the contract understood the extent of the immunity to which he was agreeing. Thus in Perry v. Payne, supra, it was said:

We think it clear, on reason and authority, that a contract of indemnity against personal injuries should not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in unequivocal terms. . No inference from words of general import can establish it.

217 Pa. at 262, 66 A. at 557 (emphasis added).

This statement is quoted in part in Camden S. D. & T. Co. v. Eavenson, supra 295 Pa. at 364, 145 A. 434 where the Court construed an indemnity clause in a lease as not being so clear and unequivocal as to protect the lessor from his own attempt to damage the lessee’s business by terminating her leasehold interest.

Morton v. Ambridge, supra, is also an instructive case. There, 375 Pa. at 635, 101 A.2d at 663 the Court said:

Any agreement or instrument by which it is intended to diminish legal rights which normally accrue as a result of a given legal relationship or transaction must spell out the intention of the parties with the greatest of particularity, since such contracts or instruments are construed strictly against the party seeking their protection. .

(Citations omitted; emphasis added.)

The Court then went on to note that “nowhere [in the contract in question] do the words ‘negligent,’ ‘negligence,’ or ‘negligently’ or words of similar import appear.” 375 Pa. at 636, 101 A.2d at 663. Accordingly, the Court construed the contract as not affording protection against one’s own negligence. Just so here: The language of the Receipt, Release and Waiver of Audit is general. Nowhere does any such word as “negligence” appear. Consequently, the general language must be construed as not providing protection against negligence. When the dissenting opinion says that “[t]here is no language excluding situations caused by [the Bank’s] negligence,” and concludes that therefore the general language affords protection against negligence, it is doing precisely what the Supreme Court in Morton v. Ambridge said should not be done.

The cases are easily multiplied. In Dilks v. Flohr Chevrolet, supra 411 Pa. at 436,192 A.2d at 688, the Court said that

where a person claims that, under the provisions and terms of a contract, he is rendered immune from and relieved of any liability for negligent conduct on his part . , the burden is upon such person to prove . that the provisions and terms of the contract clearly and unequivocally spell out the intent to grant such immunity and relief from liability. Absent such proof, the claim of immunity fails.

(Emphasis in original.)

And see Galligan v. Aroviteh, supra, 421 Pa. at 303, 219 A.2d at 465 (“must spell out with the utmost particularity”; the Court also noted that “a written instrument [must] be strictly construed against the maker,” citing Darrow v. Keystone 5, 10, 25, $1.00 Stores, Inc., 365 Pa. 123, 74 A.2d 176 (1950)); Employers L.A.C. v. Greenville B. Men's A., supra 423 Pa. at 295, 224 A.2d at 624 (“must be expressed with utmost clarity and without any ambiguity”); Kotwasinski v. Rasner, supra 436 Pa. at 40-41, 258 A.2d at 868-869 (quoting Employers as “controlling”).

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The foregoing cases would appear to leave no room for doubt about how this case should be decided. The Bank was negligent (as the dissenting opinion concedes; and see footnote 1, supra). The Receipt, Release and Waiver of Audit, however, says nothing about protecting the Bank from the results of its own negligence. Therefore, it must be construed as not so protecting the Bank. Therefore, the Bank’s suit must fail, as a matter of law, and judgment n. o. v. should have been entered. •

An argument might be made that the cases that have been discussed are distinguishable from the present case. The argument might go as follows: The cases discussed all involve a situation where A has been in some way injured by B’s negligence. Here that has not occurred: Walter F. and Margaret were not “injured” by the Bank’s negligent administration of Walter’s trust but were rather “benefited.” Reflection will show, however, that this distinction is without substance; the cases discussed and the present case are alike controlled by the same general legal principles that underlie and have shaped the law of negligence.

“Negligence” is conduct that falls below the standard expected of the reasonable man. Restatement of Torts, 2d, § 282-283 (1965). In imposing this standard the law has in mind not so much the welfare of the individual as of the community. Thus the standard is “an objective and external one, rather than that of the individual judgment, good or bad, of the particular individual.” Id., § 283, Comment c. “The words ‘reasonable man’ denote a person exercising those qualities of attention, knowledge, intelligence, and judgment which society requires of its members for the protection of their own interests and the interests of others.” Id., Comment a. “In so far as the conduct of the reasonable man furnishes a standard by which negligence is to be determined, the standard is one which is fixed for the protection of persons other than the defendant .... [T]he ‘reasonable man’ is a man who is reasonably ‘considerate’ of the safety of others and does not look primarily to his own advantage.” Id., Comment f. The mechanism by which this standard is enforced is the action for damages. If in a given instance one is required to pay damages because of negligence, one will have been given a powerful reason not to be negligent again, with the result that the community will be benefited. Nor is this reasoning merely theoretical. Negligence litigation has transformed the manner in which manufacturing is conducted, commerce transacted, and the professions practiced — to cite only general and scattered examples.

It is these considerations that have led to the rule that contracts against liability for negligence “are not favored by the law” and therefore “should be construed strictly, with every intendment against the party seeking their protection.” Crew v. Bradstreet, supra 134 Pa. at 169, 19 A. at 500. The contracts are not favored because to give them effect would enable a business to be conducted not in a manner reasonably considerate of others but primarily for its own advantage, thereby encouraging negligence rather than discouraging it. By immunizing the business from the results of its own negligence, a principal incentive for being reasonably considerate of others would be removed.

All of this is well illustrated by the present case. Consider the consequences of the dissenting opinion. According to it, the Bank may negligently distribute an estate, perhaps without even reading the will, and up to 20 years later recover what it distributed; and this may be accomplished on the strength of a document drafted by the Bank, and presented by it for signature to persons not knowledgeable in estate matters. In Perry v. Payne, supra 217 Pa. at 261, 66 A. 553 the Supreme Court quoted a statement by the Supreme Court of Virginia that aptly describes such a result:

It would be strange, indeed, if such a doctrine could be maintained. To uphold the stipulation in question would be to hold that it was competent for one party to put the other parties to the contract at the mercy of its own misconduct, which can never be lawfully done where an enlightened system of jurisprudence prevails.

To return now to the suggested distinction of the cases with which this discussion started: It is no answer to the cases to suggest that persons such as Walter F. and Margaret have been “benefited.” The Bank is a professional fiduciary. Its business is to be expert in the administration of estates and trusts, and one way it makes its money is by holding itself out to members of the public as being expert, thereby encouraging them to entrust their financial affairs to its management. Persons assured by a professional fiduciary that they are “the sole parties in interest” in the distribution of an estate or trust — as here Walter F. and Margaret were assured — are certainly likely to believe that they are entitled to spend their “inheritance”, or to change their style of living in consequence of it. If, 20 years later, the Bank is to be allowed to assert that this belief was mistaken because it “made a boo boo,” the very least that it must prove is that the mistaken belief was not its fault. And so the cases hold; that is what they mean when they all say that the intention to escape the results of one’s own negligence must be stated “in unequivocal terms,” Perry v. Payne, supra, “with the greatest of particularity,” Morton v. Ambridge, supra, and “with utmost clarity and without any ambiguity,” Employers L.A.C. v. Greenville B. Men’s A, supra.

None of this means that banks may never recover over-payments negligently made. One is not precluded from bringing a suit for restitution because of negligence. Restatement of Restitution § 59. And see Kunkel v. Kunkel, 267 Pa. 163, 110 A. 73 (1920) (payment of legacy made without reading will; restitution ordered even though legatee had spent the money). The present suit, however, is not a suit for restitution (and considering the statute of limitations, would not succeed if it were). It is a suit on the Receipt, Release and Waiver of Audit.

For the reasons stated at the outset of this opinion, the judgment of the lower court is reversed and the matter remanded for a new trial.

HOFFMAN, J., files a concurring opinion in which CER-CONE, J., joins. VAN der YOORT, J., files a dissenting opinion in which JACOBS and PRICE, JJ., join.

1 . There can be no issue that there was negligence. As noted by the judge of the Orphans’ Court, when he adjudicated the Bank’s account, the will “clearly and plainly pertinently provides for . distribution . . equally to all of the . . . grandchildren ..” (Record 139a) Either the Bank’s employee responsible for distributing Walter’s trust did not read the will, or he read it so

2 . Judgment may be reserved on whether, if the agreement did provide for indemnification against the results of the Bank’s own negligence, it would be invalid as against public policy. See Spallone v. Siegel, 239 Pa.Super. 586, 362 A.2d 263 (1976).