Central of Georgia R. Co. v. Lester

• Decision Date: 01 November 1968
• Docket Number: 43769,43770.
• Citation: 118 Ga. App. 794,165 S.E.2d 587
• Parties: CENTRAL OF GEORGIA RAILWAY COMPANY v. LESTER et al. DILLARD et al. v. LESTER et al.
• Court: Georgia Court of Appeals

118 Ga. App. 794

165 S.E.2d 587

CENTRAL OF GEORGIA RAILWAY COMPANY v. LESTER et al. DILLARD et al. v. LESTER et al.

43769, 43770.

Court of Appeals of Georgia.

Argued July 1, 1968.

Decided November 1, 1968.

Rehearing Denied December 6, 1968.

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Shoob, McLain & Jessee, C. James Jessee, Jr., Fortson, Bentley & Griffin, Edwin Fortson, Erwin, Birchmore & Epting, Eugene A. Epting, for appellants.

Hudson & Stula, Jim Hudson, for appellees.

FELTON, Chief Judge.

1. The plaintiff's action is predicated upon the defendant's alleged negligence with respect to the door's (a) defective condition and (b) defective design. The deposition and affidavits on file show no evidence that the particular door in question was in a defective condition. All of the statements concerning its condition amount to mere conjecture and opinion, since no one claimed to have observed the allegedly defective condition prior to the door's fall. It appears that this was a fresh boxcar of sand which had just arrived the night before the accident and had not been opened. Evidently the door was operating at least properly enough at the time it was loaded to get it closed. The fact that it resisted manual opening is not evidence of any defective condition, since this was caused by the loose sand around the bottom of the door — a condition which was apparently very common. Nor does the fact that such doors were frequently or even customarily opened in the manner employed at the time of the accident indicate that this particular door must have been defective. There must always be a first time for any occurrence. Apparently, the various factors involved — such as, the angle of the board, the amount and distribution of sand around the door, the degree of the impact against the door, for examples — here combined to derail the door, where they had not previously done so. There was testimony that the method employed was not that for which the door was designed and that it could and did cause it to fall off. The defendant was under no duty to redesign its doors to adapt them to a means of opening of which it did not approve and of which it may not even have had knowledge. Neither would it be required to notify each and every actual and potential opener of the doors of the proper method of opening stuck doors. Anyone using force to open such doors, rather than first consulting with the defendant's agents, to obtain either their permission or their assistance, must be considered as acting at his own peril.

The pleadings, together with the deposition and affidavits filed, exclude any negligence on the part of the defendant as the proximate cause of the plaintiff's injuries; therefore, the court erred in its judgment overruling the defendant's motion for summary judgment.

2. The cross appeal raises the question of whether or not the third-party complaint stated a claim against the third-party defendants. As this apparently is a case of first impression in our State courts, we shall quote from the case of O'Steen v. Lockheed Aircraft Corp., FSupp, N. Dist. Ga. (1968) (No. 11306), which decided substantially the same question against the third-party claimant.

"The courts of Georgia do not seem to have passed directly on this question, but as the court views the Federal Rule (14) and the Georgia law (which in this diversity case must control), the third-party complaint must fail for two reasons: first, the third-party complaint does not allege a claim which is cognizable under the present language of Federal Rule 14, and second, as against this defendant (the employer of plaintiffs' decedent), the claim is barred by the employer having previously paid workmen's compensation in connection with the same transaction.

"Under Rule 14 upon which Code Ann. § 81A-114 (a) (Ga. L. 1966, pp. 609, 627) is based the requirements for the maintenance of a third-party proceeding have been stated as follows:

"`Third-party practice in federal courts is governed by Rule 14, Federal Rules of Civil Procedure, 28 U. S.C.A. As originally promulgated in 1937, that Rule provided for the impleading of a person who is or may be liable to the defendant "or to the plaintiff" for all or part of the plaintiff's claim. This proved unworkable, and effective in 1948 the Supreme Court amended the Rule by striking out the quoted phrase. Thus as the Rule now reads, only a person who is secondarily liable to the original defendant may be brought in as a third-party defendant — as in cases of indemnity, subrogation, contribution or warranty.' 1 Barron & Holtzoff, Federal Practice & Procedure, Rules Ed., Ch. 7; Ohlinger's Federal Practice, Rev. Ed. Rule 14; 3 Moore's Federal Practice, 2nd Ed., § 14.15.

"It follows that to maintain the third-party complaint, the present defendant must show that in some fashion the proposed third-party defendant `is or may be . . . secondarily' liable to it. It also appears that the only way Knox third-party defendant could be secondarily liable is on one of the theories enumerated by Barron and Holtzoff. In other words, in order to recover on a third-party complaint, Lockheed third-party plaintiff must establish a right over against Knox either by indemnity (in tort or in contract, express or implied), subrogation, contribution or warranty.

"Of these, subrogation and warranty are not here involved, and we proceed first to the theory of indemnity. It is not contended that there was any express contract of indemnity given to Lockheed by Knox, nor can such contractual indemnity be implied, since Georgia courts never imply an agreement to indemnify another for one's own negligence in the absence of express language. Rome Builders Supply, Inc. v. Rome Kraft Co., 104 Ga. App. 488 (3); Batson Cook Co. v. Georgia Marble Co., 112 Ga. App. 226, 230.

"Nor can third-party plaintiff establish its right to indemnity under the Georgia law of torts. In the first place, the third-party complaint, both as originally filed and as amended, alleges in substance that the sole proximate cause of the death of plaintiffs' decedent was the negligence of R. F. Knox Company, his employer, and not the negligence of the original defendant, who is now the third-party plaintiff. Here, the third-party complaint alleges no relationship between Lockheed and Knox which under Georgia law would make Lockheed responsible to plaintiffs for the negligence of Knox, active or passive, and if this allegation is true — that is, if the negligence of the alleged third-party defendant was the sole proximate cause — then Lockheed has no right to indemnity from Knox, and needs none, since under this set of facts, assuming them to be true, Lockheed...