Opinion
July 20, 1970
In a negligence action to recover damages for personal injuries sustained as the result of an explosion and fire, defendant Shell Oil Company appeals, as limited by its brief, from so much of a judgment of the Supreme Court, Kings County, entered November 6, 1969, as is in favor of plaintiffs and against it upon a jury verdict; and third-party defendant Visconti appeals from so much of the judgment as is against him and in favor of Shell Oil Company on its third-party action, upon the trial court's decision. Judgment modified, on the law, by striking therefrom the fifth decretal paragraph and substituting therefor a provision dismissing the claim of Shell Oil Company as a third-party plaintiff against the third-party defendant. As so modified, judgment affirmed, with costs to plaintiffs against Shell Oil Company and to third-party defendant Visconti against Shell Oil Company. The findings of fact are affirmed. We are of the opinion that the jury verdict in favor of plaintiffs was not against the weight of the evidence. The various assignments of error have been considered and rejected. We note in this regard that it was defendant Shell which first introduced proof as to prior practice with regard to the cleaning of the lubritorium, in the form of a prior statement by plaintiff Eisenbarth. Under the circumstances, the failure to permit direct examination of the third-party defendant as to prior practice was not so material as to warrant a new trial. We are also of the view that it was improper, even for a limited purpose, to admit hearsay proof of hospital entries with regard to the causation of the accident (cf. Williams v. Alexander, 309 N.Y. 283, 287, 288). The proof indicated there was no medical importance in determining whether burns had been sustained in an explosion of natural gas or of gasoline vapors. It was sufficient, for all medical purposes, to know that an igneous thermal explosion of some sort had caused the burns. A hearsay entry purporting to give particulars of an accident which serves no medical purpose may not be regarded as having been given in the regular course of business. In view of the improper receipt of such evidence, the unsuccessful efforts of plaintiffs' counsel to establish the contents of a letter allegedly written by a treating physician to explain the entries in the hospital record was not prejudicial conduct. The parties agreed that all issues in the third-party action were to be resolved by the Trial Judge. He properly found that Shell's active negligence precluded its recovery over against Visconti, the service station operator, on a theory of common-law indemnity. The issue therefore is whether the indemnification clause in the lease between Shell and Visconti operates to indemnify Shell against its own active negligence. The general rule is that contracts will not be construed to indemnify a person against his own negligence unless that intention is expressed in unequivocal terms Thompson-Starrett Co. v. Otis Elevator Co., 271 N.Y. 36, 41). In Kurek v. Port Chester Housing Auth. ( 18 N.Y.2d 450, 456) the court noted that indemnification has been permitted under contractual provisions which fell short of an express statement as to indemnification against one's own active negligence where an unmistakable intention to that effect has been manifested. We have compared the language of the indemnification provision upon which Shell relies with that of the provisions in Kurek ( supra) and in Jordan v. City of New York ( 3 A.D.2d 507 affd. N Y 2d 723), which were held to have sufficiently manifested such an intent; and also with the provision in Marks v. New York City Tr. Auth. ( 11 A.D.2d 993, affd. 13 N.Y.2d 620), which was held insufficient to manifest an intention to indemnify against one's own negligence. While there are substantial similarities between the provision relied upon by Shell and that in Kurek ( supra), the instant provision is the weakest of those examined. It lacks the all-embracing language upon which an unmistakable intention to indemnify under circumstances such as these can be spelled out. Christ, P.J., Rabin and Benjamin, JJ., concur; Hopkins and Munder, JJ., dissent and vote to affirm the judgment.