Brenham v. Southern Pacific Company

• Decision Date: 18 June 1971
• Docket Number: Civ. A. No. 12783.
• Citation: 328 F. Supp. 119
• Parties: Robert O. BRENHAM v. SOUTHERN PACIFIC COMPANY v. SUTTON'S JUNK & SALVAGE YARDS, INC. and Sutton's Steel & Supply, Inc. and Lionel H. Sutton and Sutton Industries, Inc. (Third-Party Defendants).
• Court: U.S. District Court — Western District of Louisiana

328 F. Supp. 119

Robert O. BRENHAM v. SOUTHERN PACIFIC COMPANY v. SUTTON'S JUNK & SALVAGE YARDS, INC. and Sutton's Steel & Supply, Inc.

and

Lionel H. Sutton and Sutton Industries, Inc. (Third-Party Defendants).

Civ. A. No. 12783.

United States District Court, W. D. Louisiana, Lafayette Division.

June 18, 1971.

COPYRIGHT MATERIAL OMITTED

Piccione, Piccione & Wooten, Charles N. Wooten, Lafayette, La., for plaintiff.

Davidson, Meaux, Onebane & Donohoe, Richard C. Meaux, Lafayette, La., for defendant.

Landry, Watkins, Cousin & Bonin, William O. Bonin, New Iberia, La., for third-party defendants.

PUTNAM, District Judge.

MEMORANDUM OPINION

Robert O. Brenham, a brakeman for Southern Pacific Company, injured his back on a piece of junk which was lying on the Railroad's right-of-way. At the time of the accident the train on which Brenham was working was on a spur track located within the boundaries of Sutton's Junk and Salvage Yard.

On April 3, 1967, Brenham filed suit against Southern Pacific Company under the F.E.L.A., 45 U.S.C. § 51 et seq., alleging total and permanent disability. On May 9, 1967, Southern Pacific Company answered and impleaded Sutton's Steel & Supply, Inc. (formerly Sutton's Junk & Salvage Yards, Inc.), as a third party defendant. Southern Pacific seeks indemnity, or, in the alternative, contribution.

The Railroad alleges four grounds for its indemnity claim against Sutton's: (1) certain contracts, including a verbal agreement between Southern Pacific and Sutton's, under which Sutton's was obliged to refrain from placing or piling materials closer than six feet from the nearest rail of the spur track; (2) Sutton's breach of the warranty of workmanlike performance and failure to provide Southern Pacific with a safe place to work; (3) indemnity on a tort or quasi-contractual theory, on the ground that Southern Pacific was only constructively at fault, while Sutton's was actually at fault; (4) Sutton's contractual obligation to maintain public liability and property damage insurance. Alternatively, Southern Pacific contends that if it is not entitled to indemnity, it is at least entitled to contribution.

Sutton's responded to the third party complaint by filing a motion to dismiss and a plea of prescription. These motions were denied on December 26, 1967. A subsequent motion to produce the original of one of the contracts upon which Southern Pacific was relying proved fruitless, whereupon Sutton's reurged its motions of dismissal and prescription. The motion to dismiss was denied, and the plea of prescription was referred to the merits.

On August 2, 1968, Southern Pacific impleaded Lionel H. Sutton and Sutton Properties, Inc., alleging that these parties had interfered with the Railroad's servitude thereby causing it to incur liability toward Brenham.

On March 27, 1969, Brenham and Southern Pacific compromised, with the Railroad reserving its rights against the third party defendants.

The case went to trial on the third party demands. Pursuant to Rule 49(a), 28 U.S.C., Federal Rules of Civil Procedure, the jury returned special verdicts as follows:

INTERROGATORY NO. 1

Did Robert O. Brenham sustain an injury while working in the course of his employment with Southern Pacific Company, at the premises occupied by Sutton Steel & Supply, Inc., on December 8, 1964?

Answer: Yes

INTERROGATORY NO. 2

Was Southern Pacific Company guilty of negligence which played any part, even the slightest, in causing or bringing about the injury sustained by Mr. Brenham on December 8, 1964, in any of the following respects:

(a) in failing to provide him with a safe place to work, by requiring him to work on the side track at Sutton's yard when it knew or should have known that scrap material had accumulated within six feet of the track in areas where he would ordinarily have to walk?

Answer: Yes

(b) in failing to provide him a safe place in which to work by not providing additional lighting for him on December 8, 1964, under all of the circumstances of this case?

Answer: No.

INTERROGATORY NO. 3

Was Southern Pacific Company prevented from fulfilling its duty to furnish Mr. Brenham a reasonably safe place in which to work solely because of the actions or omissions of Sutton Steel & Supply Company, Inc., or any of its officers, employees or representatives?

Answer: No.

INTERROGATORY NO. 4

Was Lionel H. Sutton, individually, guilty of negligence which was a proximate cause of the accident of December 8, 1964, by causing or allowing scrap materials to accumulate within six feet of the track in areas where he knew or should have known that employees of Southern Pacific would ordinarily have to walk?

Answer: Yes.

The jury likewise found in Interrogatories No. 5 and 6 that Sutton Steel & Supply, Inc., and Sutton Properties, Inc., were guilty of negligence which was a proximate cause of the accident.

INTERROGATORY NO. 7

Was Robert O. Brenham himself guilty of negligence which played any part, even the slightest in causing or bringing about the injury sustained by him on December 8, 1964, in any of the following respects:

(a) in failing to keep a proper lookout for his own safety?

Answer: Yes.

INTERROGATORY NO. 8

Was the negligence of Mr. Brenham a proximate cause of the injury he sustained on December 8, 1964?¹

Answer: No

INTERROGATORY NO. 9

What percentage of the cause of the accident did Mr. Brenham's negligence contribute?

Answer: 17%

INTERROGATORY NO. 10

What sum of money paid in cash today would fairly and reasonably compensate Robert O. Brenham for the injuries sustained by him as a direct or proximate result of the accident in question?

Answer: 25,000.00

INTERROGATORY NO. 11

Did Sutton Steel & Supply Company, Inc., subsequent to August 1, 1960, verbally agree with Southern Pacific Company that Sutton would not permit scrap material within six feet of the outside rail of the spur tracks located on its property where the railroad cars were to be spotted for loading or picked up for shipment?

Answer: Yes

The jury was asked only whether the Railroad's negligence was sufficient to invoke liability under the F.E. L.A., i. e., whether its negligence played any part, even the slightest, in bringing about the accident. The jury was not asked to decide whether the Railroad's negligence was also sufficient to constitute a proximate cause of the accident. No request for a special verdict having been made before the jury retired, this Court exercises its power under Rule 49(a) to make that factual determination. Our appreciation of the evidence is that the Railroad's negligence in sending its men into Sutton's yard when it knew or should have known that the right-of-way was littered with scrap material constituted a proximate cause of the accident. Thus we expressly find that the Railroad was guilty of actual fault, as that term is understood in Louisiana law.

It is now settled beyond any doubt that a Railroad's right to recover indemnity or contribution from a third party for liability incurred under F.E. L.A. depends entirely upon state law. See, e. g., Ratigan v. New York Central Railroad Company, 291 F.2d 548 (2d Cir. 1961), cert. denied, New York Central Railroad Company v. Interstate Commodities, Inc., 368 U.S. 891, 82 S.Ct. 144, 7 L.Ed.2d 89 (1961); Chicago, Rock Island & Pacific Railroad Company v. Chicago & North Western Railway Company, 280 F.2d 110 (8th. Cir. 1960), cert. denied, 364 U.S. 931, 81 S.Ct. 378, 5 L.Ed.2d 364 (1961); Zontelli Brothers v. Northern Pacific Railway Company, 263 F.2d 194 (8th. Cir. 1959); Chicago Great Western Railway Company v. Casura, 234 F.2d 441 (8th Cir. 1956); Fort Worth & Denver Railway Company v. Threadgill, 228 F.2d 307 (5th. Cir. 1955); Waylander-Peterson Company v. Great Northern Railway Company, 201 F. 2d 408 (8th Cir. 1953); Patterson v. Pennsylvania Railroad Company, 197 F. 2d 252 (2d Cir. 1952); United States v. Chicago, Rock Island & Pacific Railway Company, 171 F.2d 377 (10th. Cir. 1948); Chicago, Rock Island & Pacific Railroad Company v. Powers Foundation Drilling Company, 294 F.Supp. 921 (W. D.Okla.1968); Illinois Central Railroad Company v. Standard Oil Company, 292 F.Supp. 337 (S.D.Miss.1968), affirmed per curiam, 403 F.2d 1022 (5th Cir. 1968); Sleeman v. Chesapeake & Ohio Railroad Company, 290 F.Supp. 830 (W. D.Mich.1968), affirmed Chesapeake & Ohio Railroad Company v. Barnaby, 414 F.2d 309 (6th Cir. 1969); Spielman v. New York, New Haven & Hartford Railroad Company, 147 F. Supp. 451 (E.D.N.Y.1956); Flusk v. Erie Railroad Company, 110 F.Supp. 118 (D.N.J.1953); Annotation, Right of Railroad, Charged With Liability Under Federal Employers' Liability Act, to Claim Indemnity or Contribution From Other Tortfeasor, 19 A.L.R.3d 928, 931 (1968).

Prescription

It is well established under Louisiana law that a claim for indemnity, whether based on contract, tort, or quasi-contract theories, is prescribed by ten years. Louisiana Civil Code Article 3544; Minyard v. Curtis Products, Inc., 251 La. 624, 205 So.2d 422 (1967); Edward Levy Metals, Inc. v. New Orleans Public Belt Railroad, 243 La. 860, 148 So.2d 580 (1963). Furthermore, prescription does not commence to run until a cause of action accrues. South Arkansas Lumber Company v. Tremont Lumber Company, 146 La. 61, 83 So. 378 (1919). In indemnity cases, the cause of action is held to arise only when the indemnitee has paid or has been condemned to pay the debt which the indemnitor should have paid. Minyard, supra; Appalachian Corporation v. Brooklyn Cooeprage Company, 151 La. 41, 91 So. 539 (1922).

The Louisiana courts have apparently not yet decided whether the right to contribution between joint tort-feasors is governed by the one-year period or the ten-year period. However, that is immaterial in this case, since the third party defendants were impleaded before the Railroad paid the debt, that is, before the Railroad had a cause of action for contribution. Under the South Arkansas case, therefore, prescription had not...