Atlantic Coast Line R. Co. v. Whetstone

• Decision Date: 16 July 1963
• Docket Number: No. 18098,18098
• Citation: 243 S.C. 61,132 S.E.2d 172
• Court: South Carolina Supreme Court
• Parties: ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Michael K. WHETSTONE, d/b/a Commodity Engineering Company, Respondent.

Page 172

132 S.E.2d 172

243 S.C. 61

ATLANTIC COAST LINE RAILROAD COMPANY, Appellant, v. Michael K. WHETSTONE, d/b/a Commodity Engineering Company, Respondent.

No. 18098.

Supreme Court of South Carolina.

July 16, 1963.

Boyd, Bruton & Lumpkin, H. Simmons Tate, Jr., Columbia, for appellant.

Whaley & McCutchen, Hoover C. Blanton, Columbia, for respondent.

MOSS, Justice.

This action was instituted by Atlantic Coast Line Railroad Company, the appellant herein, against Michael K. Whetstone, doing business as Commodity Engineering Company, the respondent herein, to recover Six Thousand Two Hundred Fifty and 00/100 Dollars, paid by appellant to A. H. Monteith, one of its employees, who was injured in the course of his employment.

The complaint of the appellant alleges that it is a common carrier operating in Interstate Commerce and is subject to the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq.; and that the respondent was on or prior to August 20, 1960, engaged in constructing a building adjacent to a spur track of the appellant in its railroad yard in Columbia, South Carolina. It is then alleged that the respondent, in the course of constructing such building, erected and permitted an unmarked and unlighted scaffold to remain in such close proximity to the appellant's spur track that there was not sufficient clearance for its engines and railroad cars to pass without striking the scaffold. It is then alleged that on August 20, 1960, at about 9:45 P.M. that A. H. Monteith, in the regular course of his duties in behalf of the appellant, was riding the lead end of a tank car which was being moved at a speed of about three or four miles per hour over the spur track to a point beyond the place where the scaffold had been erected. It is then alleged that when the scaffold became visible and it was apparent that the tank car could not clear it that the employee signalled for the engineer to stop the car but before such could be brought to a stop the tank car struck the scaffold, causing it to collapse and fall on A. H. Monteith, thereby seriously injuring him. It is then alleged that A. H. Monteith made a claim against the appellant, under and pursuant to the Federal Employers' Liability Act, for damages for the injuries he sustained. It is further alleged that the appellant, recognizing its non-delegable duty to furnish its employees a safe place to work, paid to the said A. H. Monteith the sum of Six Thousand Two Hundred Fifty and 00/100 Dollars in good faith to settle his claim against it, under the aforesaid Act. The appellant asserts that it is entitled to indemnity from the respondent for the full amount so paid because the injury to its employee was directly and proximately caused by the active gross negligence and carelessness of the respondent in erecting and permitting an unlighted and unmarked scaffold to remain so close to appellant's spur track that its trains lawfully using such could not pass without striking the same; and in failing to warn the appellant or its employees of the existence of, or the danger created by such scaffold.

The respondent demurred to the complaint upon the ground, inter alia, that the appellant is seeking indemnity as between alleged joint tort-feasors which is not permitted by the laws of this State. The trial Judge sustained the demurrer and this appeal followed.

It is elementary that in passing upon a demurrer the Court is limited to a consideration of the pleadings under attack, all of the factual allegations thereof that are properly pleaded are for the purpose of such consideration deemed admitted. When a fact is pleaded, whatever inferences of law or conclusions of fact may properly arise from it are to be regarded as embraced in such averment. Alderman v. Bivin, 233 S.C. 545, 106 S.E.2d 385.

It is the position of the respondent that the appellant's liability to its employee, A. H. Monteith, under the Federal Employers' Liability Act, could exist only if the appellant was negligent. The rule is that in order for an injured employee to recover under the aforesaid Act he must prove that the employer was negligent and that such negligence was the proximate cause in whole or in part. Williamson v. Southern Railway Company, 183 S.C. 312, 191 S.E. 79; Inman v. Baltimore & Ohio R. Co., 361 U.S. 138, 80 S.Ct. 242, 4 L.Ed.2d 198. Negligence must have been the cause of the employee's injury, and in the absence of negligence on the part of the employer a recovery cannot be had. 35 Am.Jur., Master and Servant, Section 400, at page 822.

An injured person can sue any one or all of several joint tort-feasors whose negligent acts or omissions unite to produce his injury. Pendleton v. Columbia Ry., Gas & Electric Co. et al., 133 S.C. 326, 131 S.E. 265, and Hollifield v. Keller, 238 S.C. 584, 121 S.E.2d 213. However, when only one joint tort-feasor is sued, recovery against such precludes the injured person from thereafter bringing an action against the other tort-feasor. Camp v. Petroleum Carrier Corp. et al., 204 S.C. 133, 28 S.E.2d 683.

We have held that negligence, to render a person liable need not be the sole cause of an injury; but it is sufficient if it is a proximate concurring cause. Matthews v. Porter, 239 S.C. 620, 124 S.E.2d 321.

The complaint in this action alleges that A. H. Monteith, the employee of the appellant, made a claim against it for damages under the Federal Employers' Liability Act, and it 'recognizing its non-delegable duty to furnish its employees a safe place to work' paid such injured employee Six Thousand Two Hundred Fifty & 00/100 Dollars, in good faith to settle such claim. Since no liability of the appellant existed in favor of its employee in the absence of negligence on its part, it is logical to conclude that the appellant, in making settlement with its injured employee, admitted that it was guilty of actionable negligence and such was, at least, a concurring proximate cause of such employee's injury.

Since the appellant now asserts its right to indemnity from the respondent, such action presupposes actionable negligence of both parties towards Monteith. Best v. Yerkes, 247 Iowa 800, 77 N.W.2d 23, 60 A.L.R.2d 1354. Therefore, the appellant and the respondent were joint tort-feasors and their several acts united to produce the injury sustained by the employee of the appellant.

The general rule is that there can be no indemnity among mere joint tort-feasors. Since the decision in Merryweather v. Nixan, decided in 1799, 8 T.R. 186, 101 Eng.Reprint 1337, it has been said to be an established principle of the common law that as between joint tort-feasors there is no right of contribution or indemnity, the rule being premised on the doctrine that the Courts are not open to wrongdoers to assist them in adjusting the burdens of their misconduct, and that the law will not lend its aid to one who founds his cause of action on a delict. 27 Am.Jur., Indemnity, Section 18, page 467.

In the case of Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 24 A.L.R.2d 319, it was held that in the case of concurring or joint tort-feasors, having no legal relation to one another, each of them owing the same duty of care to the injured party, and involved in an accident in which the injury occurs, there is complete unanimity among the authorities that no right of indemnity exists on behalf of either against the other; in such a case, there is only a common liability and not a primary and secondary one even though one may have been such more negligent than the other. It was further held that the rule is that when two or more contribute by their wrongdoing to the injury of another, the injured party may recover from all of them in a joint action or he may pursue any one of them and recover from him, in which case the latter is not entitled to indemnity from those who with him caused the injury. In support of the foregoing rule there is cited the cases of Union Stockyards Co. of Omaha v. Chicago B. & Q. R. Co., 196 U.S. 217, 25 S.Ct. 226, 49 L.Ed. 453; Massachusetts Bonding & Insurance Company v. Dingle-Clark Co., 142 Ohio St. 346, 52 N.E.2d 340; Fidelity & Casualty Co. v. Federal Express, Inc., 6 Cir., 136 F.2d 35, and numerous other cases.

The case of State ex rel. Siegel v. McLaughlin, Mo.App., 315 S.W.2d 499, was an action for injuries sustained by a passenger on a street car owned by the defendant and operated by its employee, also a defendant, which collided with an automobile owned and driven by a third defendant. The street car company filed a cross-claim against the owner of the automobile, seeking indemnity in the event that damages were awarded against it, alleging that the collision was the result of the negligence of the automobile owner in turning without warning onto the street car tracks and coming to a sudden halt. In refusing to allow indemnity the Court followed the rule stated in the McCabe case to the effect that no right of indemnity exists between joint tort-feasors who have no legal relation to one another and who have breached the same duty to the injured person, even though one tort-feasor may be very much more negligent than the other.

In Crouch v. Tourtelot, Mo., 350 S.W.2d 799, the Court held that indemnity should not be allowed 'as between joint tort-feasors involved in a two-car automobile collision on a highway because of supposedly different types or degrees of negligence.'

In the case of North Carolina Electric Power Co. v. French Broad Mfg. Co., 180 N.C. 597, 105 S.E. 394, the Court said:

'Ordinarily, if one person is compelled to pay damages because of negligence imputed to him as the result of a tort committed by another, he may maintain an action over for indemnity against the person whose wrong has thus been imputed to him; but this is subject to the proviso that no personal negligence of his own has joined in causing the injury.'

The rule that there is no right to indemnity as between joint...