Baker v. Kimberly-Clark Corp.
Decision Date | 18 September 1973 |
Docket Number | Civ. No. 4050. |
Parties | George P. BAKER et al., Plaintiffs, v. KIMBERLY-CLARK CORPORATION et al., Defendants. |
Court | U.S. District Court — Southern District of Ohio |
David C. Greer, Dayton, Ohio, for plaintiffs.
C. Richard Grieser, Columbus, Ohio, J. Robert Radabaugh, Dayton, Ohio, for defendants.
This matter is before the Court upon an Agreed Statement of Facts jointly submitted by plaintiffs, George P. Baker, Richard C. Bond, Jervis Langdon, Jr., and Willard Wirtz, Trustees of the Penn Central Transportation Company and by defendant Kimberly-Clark Corporation. Both sides have submitted briefs on the stipulated sole issue before the Court at this time, to wit, the extent, if any, to which the defendant Kimberly-Clark Corporation is obligated to indemnify the plaintiffs from the claim of Charles Crist, a Penn Central conductor, injured as a result of an accident on January 8, 1971. The Court has jurisdiction by way of diversity of the parties under 28 U.S.C. § 1332 (1970).
On 13 December 1968, defendant Kimberly-Clark Corporation entered into a "Private Side Track Agreement" with Penn Central Company, plaintiff's predecessor, which Agreement became effective on 8 March 1968. (Stipulation 3). The Agreement, in pertinent part, states:
At approximately 12:20 a.m. on 8 January 1971, while the Agreement was in full force and effect, Conductor Charles Crist, an employee of the Penn Central Transportation Company, was accidentally knocked from the stirrup of the lumber car of train MOW-½ in West Carrollton, Ohio, by a bale of pulp lying on the ground between the railroad loading dock and Track A at the Kimberly-Clark Corporation yard. (Stipulations 4 and 5). The bale of pulp was located within six feet of the nearest rail of Track A at a straight portion of those tracks. (Stipulation 8). As a result, Mr. Crist suffered injuries and made claim upon the plaintiffs under the Federal Employer's Liability Act. (Stipulation 6). Notice was given by plaintiff to defendant by letter of 13 January 1971 of said claim, and plaintiff demanded that defendant assume all liability and indemnify the plaintiff against all claims arising out of the 8 January 1971 incident. (Stipulation 10). To date, defendant has refused to so indemnify the plaintiffs. Plaintiffs now seek a declaratory judgment from this Court on the extent, if any, to which they are entitled to indemnification by the defendants under their Side Track Agreement.
Both plaintiffs and defendant have cited Freed v. Great Atlantic & Pacific Tea Co., 401 F.2d 266 (6th Cir. 1968), in the briefs as the controlling precedent. In Freed, the Sixth Circuit, relying on diversity jurisdiction principles, applied Ohio law on interpretation of Side Track Agreements to construe an indemnification clause. The Court found that since the contractual language was not "clear and...
To continue reading
Request your trial-
Simon v. Farmland Industries, Inc.
...ashes in Pyzynski v. Pennsylvania Cent. Trans. Co., 438 F.Supp. 1044 (D.C.N.Y., W.D., 1977); a bale of pulp in Baker v. Kimberly-Clark Corp., 364 F.Supp. 63 (S.D.Ohio, W.D., 1973); and fertilizer in Atchison, Topeka and Santa Fe Rail. Co. v. Smith, 563 S.W.2d 660 (Civ.App.Tx., 1978). Anothe......
-
Ploog v. Ogilvie
...1952); a wood cart, Booth-Kelly Lumber Co. v. Southern Pacific Co., 183 F.2d 902 (9th Cir. 1950); a bale of pulp, Baker v. Kimberly-Clark Corp., 364 F.Supp. 63 (S.D.Ohio 1973); and fertilizer, Atchison, T. & S. F. Ry. Co. v. Smith, 563 S.W.2d 660 3 Indemnity may be awarded "where there is a......