Bohannon v. Southern Ry. Co.

• Decision Date: 23 June 1958
• Docket Number: No. 37200,No. 2,37200,2
• Citation: 104 S.E.2d 603,97 Ga.App. 849
• Parties: W. E. BOHANNON v. SOUTHERN RAILWAY COMPANY et al
• Court: Georgia Court of Appeals

Page 603

104 S.E.2d 603

97 Ga.App. 849

W. E. BOHANNON v. SOUTHERN RAILWAY COMPANY et al.

No. 37200.

Court of Appeals of Georgia, Division No. 2.

June 23, 1958.

Rehearing Denied July 8, 1958.

Syllabus by the Court

Construed as it must be strictly against the indemnitee, the provision of the licensing agreement between the plaintiff and the defendant railroad company in which the plaintiff agreed, in consideration of the use of a railroad right of way, to indemnify and save harmless the railroad from the consequences of property loss sustained by reason of the negligence of the plaintiff or attributable thereto or to the presence of the buildings or their contents on the right of way, whether or not the railroad company was contributorily negligent, does not preclude the plaintiff from seeking compensation for a property loss of the plaintiff caused solely by the negligence of the defendant.

W. E. Bohannon brought an action against Southern Railway Company and various of its employees in the Superior Court of Dodge County, alleging that the plaintiff is the owner and operator of a sawmill and planing mill; that a portion of the plaining mill is located on the defendant's right of way pursuant to a licensing agreement between the parties; that because of the defendant's negligence in certain stated particulars certain cars of one of the defendant's freight trains dropped burning oil from overheated journal boxes along dead grass and waste material on the defendant's right of way close to the plaintiff's mill, and that the fire spread from there to the mill causing damage in the sum of $32,532.48. It is alleged that the defendant denies liability by reason of an indemnity clause in the licensing contract. General demurrers of the defendants were sustained and the plaintiff excepts. Counsel for the defendant state in their brief that the sole question of law presented by this appeal is whether or not the language of the indemnity agreement constitutes a defense to the plaintiff's cause of action which alleges that the destruction of the plaintiff's property was caused solely by the defendant's negligence, and the case is accordingly being so treated.

Hamilton Napier, Macon, D. Dudley Smith, Eastman, for plaintiff in error.

Harris, Russell, Weaver & Watkins, Macon, for defendant in error.

TOWNSEND, Judge.

1. In Copeland v. Beville, 93 Ga.App. 442, 92 S.E.2d 54, 55, 'indemnity' is defined as 'the obligation [or duty] resting on one person to make good any loss or damage another has incurred or may incur by acting at his request or for his benefit.' There is a marked distinction between 'a covenant * * * releasing lessor from and agreeing not to sue him on claims accruing to lessee and covenants * * * agreeing to indemnify lessor and hold him harmless from claims of others.' Martin v. American Optical Co., 5 Cir., 184 F.2d 528, 529. This case quotes the following language from Employers Casualty Co. v. Howard P. Foley Co., Inc., 5 Cir., 158 F.2d 363: 'It is certainly the general rule that, where the indemnity is not contracted for from an insurance company whose business it is to furnish indemnity for a premium and where indemnity is the principal purpose of the contract; but from one not in the indemnity business and as an incident of a contract whose main purpose is something else * * * the indemnity provision is construed strictly in favor of the indemnitor.' The general rule is that an indemnity agreement which purports to indemnify against one's own negligence will not be so construed unless such obligation is expressed in unequivocal terms. See Fisk Tire Co. v. Hood Coach Lines, 54 Ga.App. 401, 188 S.E. 57; Halliburton Oil Well Cementing Co. v. Paulk, 5 Cir., 180 F.2d 79; Standard Oil Co. of Texas v. Wampler, 5 Cir., 218 F.2d 768; Buffa v. General Motors Corp., D.C., 131 F.Supp. 478; Ruddy v. New York Central Railway Co., D.C., 124 F.Supp. 470; Foster v. Pennsylvania R. Co., D.C., 104 F.Supp. 491; McCormick v. United States, D.C., 134 F.Supp. 243. Nevertheless, a railroad company has a privilege in granting to another a right not owing by it to the public generally to make use of a part of its right of way, to limit its liability in such way as the contracting parties may see fit. See Annotation, 175 A.L.R. at pages 8, 94. It was pointed out in Aetna Casualty & Surety Co. v. Bros, 226 Minn. 466, 33 N.W.2d 46, that a contract of indemnity may in the same instrument make provision for loss or damage and also for indemnity against liability to third persons, and there seems no reason why the same clause may not provide simultaneously for indemnity against property loss or damage to the lessor; indemnity against liability to third parties resulting from injury due in part or wholly to negligence of the lessor, and an exemption from liability for injury, loss or damage to the lessee caused by the lessor.

Applying the above rules of law which this court considers sound and relevant to the facts of this case, it remains only to examine the indemnity clause in the contract between the plaintiff licensee sawmill company and the defendant railroad company to determine whether, construed against the indemnitee as it must be, it exempts the railroad from liability resulting solely from its own negligence in regard to the property of the indemnitor. This provision reads as follows: 'Inasmuch as the use by the licensee of property of the railway company in exercise of privileges herein granted may create risks of fire or other loss, injury or damage which would not accrue except for such use, and the railway company would not grant said privileges except upon the condition that it shall be protected against any risk so created, the licensee, in consideration of said privileges, covenants hereby to protect and indemnify the railway company and save it wholly harmless from the consequences of any property loss or damage, death or personal injury whatever, accruing or suffered or sustained from or by reason of any act, negligence or default of the license, his agents, servants or employees, in or about or in connection with the exercise of the privileges herein granted, or which may in any manner or to any extent be attributable thereto or to the presence of said building of the licensee, or contents...