Peterson v. Marlowe

UPON REHEARING

We granted the petition of defendant St. Andrew’s Catholic Church to determine, upon additional briefs, a limited issue concerning a duty of St. Andrew’s Catholic Church to defendant Harold J. Marlowe not discussed in our original opinion. The issue arises out of a possibly inadvertent discrepancy between a finding and corresponding conclusion of the trial court. The trial court found as its Finding of Fact No. XVII:

“That the oral lease agreement between Marlowe and the Church of April 15th, 1971 contemplated that the Church would carry such liability insurance as would indemnify Marlowe for all liability arising out of the operation, use and maintenance of such vehicle during the period of the lease.” (Italics supplied.)

The evidence amply supports this finding, and it is certainly not clearly erroneous. However, the trial court’s Conclusion of Law No. 1, which should correspond to that finding, is inexplicably stated in considerably broader terms. Conclusion of Law No. 1 states:

“That the Saint Andrew’s Catholic Church of Fairfax, Minnesota shall indemnify Harold J. Marlowe as to his liabilities arising out of the maintenance, operation and use of the 1966 Pontiac automobile.” (Italics supplied.)

This conclusion is clearly erroneous, for while the finding is only that the church will carry insurance to indemnify Marlowe, *137the conclusion would require that the church itself will indemnify Marlowe. We accordingly reverse the judgment in this additional respect and remand with directions to amend the judgment to state that St. Andrew’s Catholic Church was obligated only to carry insurance to indemnify Marlowe and has fully performed that obligation.