Chicago, RI & P. Ry. Co. v. Maryland Casualty Co.

• Decision Date: 30 January 1935
• Docket Number: No. 10037.,10037.
• Parties: CHICAGO, R. I. & P. RY. CO. v. MARYLAND CASUALTY CO.
• Court: U.S. Court of Appeals — Eighth Circuit

75 F.2d 596 (1935)

CHICAGO, R. I. & P. RY. CO. v. MARYLAND CASUALTY CO.

No. 10037.

Circuit Court of Appeals, Eighth Circuit.

January 30, 1935.

Henry S. Conrad, of Kansas City, Mo. (Luther Burns, of Topeka, Kan., and L. E. Durham and Hale Houts, both of Kansas City, Mo., on the brief), for appellant.

Spencer F. Harris, of Kansas City, Mo. (Paul G. Koontz, of Kansas City, Mo., on the brief), for appellee.

Before SANBORN, WOODROUGH, and BOOTH, Circuit Judges.

SANBORN, Circuit Judge.

The appellant will be referred to as "the Rock Island"; the appellee as "the Casualty Company"; the Kansas City Terminal Railway Company as "the Terminal Company"; and the Pratt-Thompson Construction Company as "the contractor."

In the summer of 1923, the terminal company, which owns and operates the terminal facilities used by the Rock Island and other railroads entering Kansas City, Mo., engaged the contractor, by written agreement, to incase with gunite the girders and crossbeams of a railroad bridge across the Kaw river, belonging to the terminal company and which was used by the Rock Island. On August 31, 1923, while the work called for by the agreement was being done, an employee of the contractor, while working on the bridge, was struck and killed by a Rock Island train. His widow sued the Rock Island and the terminal company in the circuit court of Jackson county, Mo., at Kansas City, to recover for his death upon the ground that it was caused by negligence. The Rock Island demanded that the contractor defend the suit on its behalf, which the contractor refused to do. The casualty company, which was surety for the faithful performance by the contractor of its agreement with the terminal company, assumed the defense of the suit for the terminal company. The result of the suit was a dismissal upon the merits for the terminal company, and a judgment against the Rock Island, which it was obliged to pay. Because of the suit, the Rock Island expended $13,195.78, to recover which it brought this action at law against the casualty company upon the ground that, under the agreement with the terminal company, the contractor had undertaken to indemnify not only the terminal company against claims, suits, and judgments arising out of injuries to the employees of the contractor, but also to indemnify the users of the terminal company's tracks against such claims, suits, and judgments brought or obtained against any of them; and that the casualty company, as surety for the contractor, was therefore obligated to refund what the Rock Island had expended on account of the suit and judgment growing out of the death of the contractor's employee. The casualty company denied liability.

The facts were stipulated and the case tried to the court without a jury. The court found the facts to be "as set out in the agreed statement of facts which was offered in evidence as Plaintiff's Exhibit 1." It reached the conclusion that there was no liability on the part of the casualty company, for the reason that the agreement between the terminal company and the contractor did not require the contractor to pay the judgment obtained against the Rock Island. Judgment was entered for the casualty company, and the Rock Island appealed.

In this case the agreed statement of facts, together with the documents referred to therein, which were separately offered in evidence, cover some forty-five pages of the record. The last paragraph of the stipulation indicates that the facts agreed to were the evidentiary facts rather than the ultimate facts, for it recites:

"Either party hereto may introduce such additional, relevant, material and competent testimony as it desires not in conflict with the terms of the above and foregoing agreed stipulation of facts. The foregoing stipulation of facts was made subject to objection by either party as to the materiality of any of the testimony covered by such stipulation."

Where a case is submitted upon a stipulation of ultimate facts, the question whether the judgment rendered is justified by the facts agreed to can be reviewed; but, "`an agreed statement of facts, on which judgment is rendered, consisting not of the ultimate facts, but of the evidence to be submitted to the court on the issues presented by the pleadings, is not the equivalent of a special finding of the facts, allowing review of their sufficiency.' Kentucky Life & Acc. Ins. Co. v. Hamilton (C. C. A. 6) 63 F. 93." Valenti v. Prudential Ins. Co. of America (C. C. A. 8) 71 F.(2d) 229, 232.

In Kentucky Life & Acc. Ins. Co. v. Hamilton (C. C. A. 6) 63 F. 93, at page 98, Judge Lurton, later Mr. Justice Lurton, says of a similar stipulation: "An agreed statement of facts, which will be accepted as the equivalent of a special finding of facts, must relate to and submit the ultimate conclusions of fact, and an agreement setting out the evidence upon which the ultimate facts must be found is not within the rule stated in Supervisors v. Kennicott, supra 103 U. S. 554, 26 L. Ed. 486." See, also, Perry v. Wiggins (C. C. A. 8) 57 F.(2d) 622.

Our opinion is that, upon this record, which shows that the Rock Island made no requests for findings of fact or declarations of law in its favor, and no motion for judgment upon the sole ground that the evidence would support no other conclusion, the question of the sufficiency of the evidence to support the judgment is not properly before us for review.

However, it is not necessary to affirm the judgment upon that ground alone, and we prefer not to do so.

The Rock Island has based its right to recover upon the first paragraph of section 11 of the agreement between the terminal company and the contractor. This paragraph reads as follows:

"The Contractor agrees to indemnify and save harmless the Company, and all other Companies which may, at any time, use the tracks of said Company, for and from all claims, demands, payments, suits, actions, recoveries and judgments of every name and description, brought or recovered against it Italics ours, for, or on account of, any personal injuries (including deaths) or damages to property received or sustained by any party or parties, by reason of any act of the said Contractor, or of any subcontractor hereunder, or of any agent or servant of either said Contractor or subcontractor, in the construction of the work provided for by this contract, or by, or in consequence of, any negligence or carelessness in guarding the same, or in any manner growing out of, or connected with, said work; or on account of the death of, or injury to, the person, or damage to the property of the Contractor, or of any subcontractor hereunder, or of any of the agents, servants or employees of the Contractor, or of any subcontractor hereunder, who shall be engaged in or about the work to be performed under this contract, or any subcontract hereunder, whether such death, injury or damage shall be caused by the negligence of the company, or of such other Companies or any of them, its or their agents, or servants, or otherwise; and so much of the money due, or to become due, to said...