Louisville & N. R. Co. v. Atlantic Co.

• Decision Date: 28 February 1942
• Docket Number: 29356,29357.
• Citation: 19 S.E.2d 364,66 Ga.App. 791
• Court: Georgia Court of Appeals
• Parties: LOUISVILLE & N. R. CO. et al. v. ATLANTIC CO. ATLANTIC CO. v. LOUISVILLE & N. R. CO. et al.

19 S.E.2d 364

66 Ga.App. 791

LOUISVILLE & N. R. CO. et al. v. ATLANTIC CO.

ATLANTIC CO. v. LOUISVILLE & N. R. CO. et al.

No. 29356, 29357.

Court of Appeals of Georgia, Division No. 2.

February 28, 1942

Rehearing Denied March 11, 1942.

Syllabus by the Court.

Neely Marshall & Greene and W. Neal Baird, all of Atlanta, for plaintiffs in error.

Brandon Hynds & Tindall, of Atlanta, for defendant in error.

SUTTON Judge.

Louisville & Nashville Railroad Company and Atlantic Coast Line Railroad Company, as lessees of Georgia Railroad and Banking Company, and Georgia Railroad & Banking Company brought suit against the Atlantic Company seeking to recover on a certain indemnity contract, the petition alleging: The plaintiffs are the lessees and lessor, respectively, of the line of road known as the Georgia Railroad. The defendant, a corporation, is the successor in title of all the properties formerly held by the Atlantic Ice & Coal Company and through a corporate set-up became liable for all of the obligations of the said predecessor in title, and especially its obligation to the plaintiffs under a certain lease contract between the predecessor in title and the plaintiffs, dated September 21, 1923, and relating to the installation of a certain private railroad track, under the terms of which the said Atlantic Ice & Coal Company agreed to release, indemnify, and hold harmless the lessees of the Georgia Railroad & Banking Company and the Georgia Railroad & Banking Company "from and against all claims for damages on the part of any person whomsoever for fatal or personal injuries to the lessee [Atlantic Ice &amp Coal Company] or the lessee's officers, agents, employees, or others, except the agents and employees of the lessor, when said enumerated persons were, at the time so injured, upon or adjacent to said new track [the private track of the Atlantic Ice & Coal Company] in connection with the transaction of or having business with the lessee, and which injuries grow out of the construction or maintenance of said new track, or the operation of locomotives or cars thereover, or over tracks adjacent thereto, when said operation is in or about the business of the lessee." A copy of the said lease was attached to the petition and provided, among other things, in addition to the above-quoted provision, that the agreement was entered into "for the purpose of providing the lessee's plant with better shipping facilities," and that "the lessor shall have the right, at all times, to use said new track in connection with the lessor's general railroad business or serve other persons and industries thereover so long as said user shall not unreasonably interfere with the use of said new track in connection with the business of the lessee, and to extend said new track or connect other tracks thereto for use in the lessor's general railroad business or to serve other persons and industries." On December 28, 1938, at the Decatur, Georgia, plant of the defendant, and upon the track described in the lease contract, one Jessie Gray sustained a fatal injury by being crushed beneath one of the cars situated upon said private side track, which said

private side track was at the time of the injury being served by an engine of the plaintiffs herein. On April 12, 1939, Lemma Gray, as the widow of the deceased, brought suit against Georgia Railroad & Banking Company in the city court of Decatur to recover for her husband's death. The Atlantic Company was duly and properly vouched into court. The case came on for trial and resulted in a verdict for the plaintiff in the sum of $3,041 and court costs. The defendant's motion for new trial was overruled, and afterwards a fi. fa. was issued and was paid by the plaintiffs herein. The Atlantic Company made no appearance in the case, but one of its attorneys was present during a portion of the trial. The present suit is brought to recover from the defendant the full amount of principal, interest, and costs by reason of said suit in the city court of Decatur, a copy of which was attached to the petition in the present case.

The defendant filed a general demurrer to the petition and also filed an answer admitting substantially all of the allegations of the petition but denied liability and that any right to indemnity existed and set up that the verdict and judgment obtained in the Gray case were by reason of the negligence of the plaintiffs' herein, and that the indemnity contract here relied upon was against public policy and void because it sought to avoid liability for the plaintiffs' own negligence.

The plaintiffs demurred generally to the defendant's answer and specially demurred to that portion alleging that the indemnity contract was against public policy and void, the ground of objection being that the allegations were only conclusions of the pleader.

The defendant amended its answer by alleging that it was compelled to sign the indemnity agreement in order to get cars of coal to its plant at a cost that would enable it to conduct its business, and that the construction and maintenance of the spur track was a public service which was owed the defendant by the plaintiffs, and that in operating its train and delivering a car on the defendant's premises at the time of the fatal injury of Jessie Gray the railroad was acting as a common carrier. The plaintiffs then renewed their demurrers to the defendant's answer as amended and further specially demurred to the allegations of the amendment last above mentioned as being irrelevant and immaterial and conclusions of the pleader without showing sufficient facts to support the conclusions, the agreement, on the contrary, showing that the operation of trains on the spur track was done as an added convenience to the defendant and not as part of the duty of the plaintiffs as a common carrier. The defendant then amended its answer by alleging that at the time the indemnity contract was entered into the Public Service Commission of Georgia had not promulgated any rule, order, or other direction requiring persons or corporations served by spur tracks or side tracks to enter into any indemnity agreement like that sued on by the plaintiffs herein, and that there was no legal obligation upon the defendant to make such a contract, but that being a shipper needing the services of the plaintiffs as a common carrier, and in order to have the track available and use the services of the plaintiffs as a common carrier, as it was entitled to, the defendant was compelled to sign the contract containing the indemnity agreement, and if the agreement provides indemnity in favor of the plaintiffs against their own negligence it is contrary to public policy and is void. All demurrers were then renewed to the answer as amended.

The court by an order in writing, reciting that the pleadings of the parties made an issue of fact as to whether or not the side track constructed for the defendant was such as was required to be furnished as a service to the public, overruled all of the demurrers, and exceptions pendente lite were filed by both sides. A motion by the plaintiffs to reconsider the order overruling its demurrers was overruled by the court, and the plaintiffs filed exceptions pendente lite.

The plaintiff then amended their petition by alleging that the lease hereinbefore mentioned, dated September 21, 1923, was by mutual agreement renewed by a written agreement dated May 1, 1934, a copy of which was attached to the amendment and made a part thereof, and that on June 9, 1925, the plaintiffs and the Atlantic Ice & Coal Corporation and the Atlantic Ice & Coal Company entered into an agreement under the terms of which the agreement entered into on September 21, 1923, was cancelled as to Atlantic Ice & Coal Corporation and thereupon became the obligation of the Atlantic Ice & Coal Company, a copy of the agreement being attached to the amendment and made a part thereof. The copy of the side-track renewal agreement recites the fact of the original contract of September 1, 1923, for a term of ten years commencing September 1, 1923, and provides for an extension of ten years, ending August 31, 1943, and further recites the fact of the Atlantic Ice & Coal Company having succeeded to the interest of the Atlantic Ice & Coal Corporation, party to the original side-track agreement. The defendant renewed its demurrers to the petition as amended and also demurred to the last-named amendment on the ground that it set out a new and distinct alleged cause of action on a contract executed in 1934, where as the original petition sets out an alleged cause of action on a contract executed in 1923. The court overruled the demurrers and the defendant filed its exceptions pendente lite.

Thereafter the defendant amended its answer by setting up that the railroad track in question was not a private track but a public track which was constructed for the benefit of the public.

The case proceeded to trial and resulted in a verdict and judgment for the defendant. The plaintiffs filed a motion for new trial and by amendment added several special grounds. The court overruled the motion. The plaintiffs assign error in their bill of exceptions on the judgment of the court overruling their demurrers to the answer of the defendant as amended, the judgment overruling their motion to reconsider, and the judgment overruling the motion for new trial. By cross-bill of exceptions the defendant assigns error on the judgment of the court overruling its demurrers to the petition as amended.

1. It is desirable to set forth the substance of the defendant's answer as several times amended, and then consider the renewed demurrers of the plaintiffs thereto. The defendant admitted that judgment was obtained in the...