Eureka Coal Co. v. Louisville & N.R. Co.

• Citation: 219 Ala. 286,122 So. 169
• Decision Date: 02 May 1929
• Docket Number: 6 Div. 237.
• Court: Supreme Court of Alabama
• Parties: EUREKA COAL CO. v. LOUISVILLE & N. R. CO.

122 So. 169

219 Ala. 286

EUREKA COAL CO. v. LOUISVILLE & N. R. CO.

6 Div. 237.

Supreme Court of Alabama

May 2, 1929

Appeal from Circuit Court, Jefferson County; William M. Walker Judge.

Bill in equity by the Louisville & Nashville Railroad Company against the Eureka Coal Company. From a decree overruling a demurrer to the bill, defendant appeals. Affirmed.

Rule denying indemnity between joint tort-feasors is limited to intentional wrong.

The bill alleges that complainant, a common carrier, operates a railroad through, and maintains a regular place for the reception and discharge of passengers at, Roebuck, Ala.; that in November, 1918, complainant and defendant entered into a written contract (exhibited with the bill) whereby defendant was authorized or licensed to construct and maintain over and upon complainant's right of way, across and above its railroad, three voltage light and power wires, without compensation to complainant and solely for accommodation of defendant; that thereafter defendant erected poles, strung wires, and installed materials as contemplated by the contract, then and at all times thereafter well knowing that complainant was a common carrier of passengers whose business, in part, was the reception and discharge of passengers at Roebuck.

It is further alleged that some time after the execution of said contract, defendant installed on the same poles, at or near Roebuck Station, on which said voltage wires were suspended over complainant's track, two telephone wires for defendant's own use, well knowing then and thereafter that, if any of said wires sagged or fell below the level of clearance for complainant's engines and trains, moving over the track at that time, the safety of complainant's employees and persons on or about the station premises, to enter or disembark from complainant's trains at Roebuck would be endangered, and that complainant would be subjected to the hazard of claims for damages resulting from sagging or falling wires.

It is further alleged that in June, 1927, Miss Claire Ford was on the station grounds at Roebuck for the purpose of taking passage on one of complainant's trains, being at the time accompanied by her parents; that when the train, on which Miss Ford was to take passage, drew up to and by the station premises, the locomotive came into contact with a sagging telephone wire of defendant, in consequence of which the wire was broken and Miss Ford and her parents were knocked down and injured; and that the operatives of said train were not aware that said wire had so sagged as to obstruct a clear passage of locomotives. It is further alleged that the Fords made claims to and against complainant for damages for personal injuries, Miss Ford having notified complainant of her determination to institute suit to enforce her claim that complainant thereupon demanded of defendant that it assume its just and proper obligation in the premises, to which demand defendant responded denying any and all liability; that after said repudiation by defendant, complainant, in the exercise of due prudence, through negotiations agreed to pay and did pay to the Fords the aggregate sum of $1,375, as reasonable settlement of their claims. It is averred that, in equity, good conscience, and in accordance with the dictates of natural justice, defendant should reimburse complainant the sum it was required to pay because of the primary, originating action or inaction of defendant in permitting the creation of the condition which, without the knowledge of complainant's operatives, caused the injuries.

Paragraph 9 of the bill is as follows:

"Your Orator further avers that on still another theory, proposed and supported by the facts hereinabove averred, the Eureka Coal Company is due to pay and should pay to your Orator the said, the respective sums hereinabove stated as having been paid, under the circumstances alleged, to the said Fords; your orator alleges that the Eureka Coal Company, in installing the above described telephone wires on the same poles on which were suspended the high voltage wires referred to and installed under the provisions of the contract, Exhibit 'A' to this bill, the Eureka Company subjected itself to Orator's protection and advantage, to the conditions and to the provisions for indemnity set forth and provided for in the contract, Exhibit 'A' to this bill; the said Eureka Company well knowing when it strung said telephone wires on the poles erected and maintained by the Eureka Company to carry, and that did carry, the said high voltage wires, that your orator only gave its permission and consent to the erection of said high voltage wires as an accommodation to the said Eureka Company and without benefit, compensation or advantage to your orator, and the said Eureka Coal Company knew, at all times, that the attaching of said telephone wires to said poles imposed an additional hazard to the conduct by your orator of its business at Roebuck station, and subjected its employés in that service and its patrons to such hazard or danger as a want of appropriate supervision or care to prevent the falling or sagging of said telephone wires would and, in fact did introduce.

"Your orator, therefore, avers that the indemnity provided in said Exhibit 'A' should be enforced through the obligation of the Eureka Coal Company to reimburse your orator in the respective sums, with interest, paid out by your orator to the said Fords; and your orator avers that the Eureka Coal Company is, in this court of equity and good conscience estopped to deny to your orator the full benefit of said indemnity provided in Exhibit 'A' as against the loss sustained by your orator thru the sums paid to the Fords under the circumstances hereinabove alleged."

It is prayed that defendant be adjudged and required to pay, in reimbursement of complainant, the sums, with interest, complainant has paid out.

The original demurrer, addressed "to complainant's bill of complaint as a whole and to each and every paragraph thereof, separately and severally," was upon the sole ground that, "Said bill of complaint does not contain equity."

The amended demurrer "to the bill of complaint" adds the following grounds, in substance:

1. That the payments made by complainant to the Fords were voluntary payments, it not appearing from the bill that such payments were made in discharge of any liability on the part of defendant.

2. That the contract of indemnity relied upon applied and related only to electric wires and power wires and supports for carrying the same.

3. That it is not made to appear that defendant was guilty of any negligence with reference to the erection or maintenance of said telephone wires.

Brown, J., dissenting.

Cabaniss, Johnston, Cocke & Cabaniss, of Birmingham, for appellant.

McClellan & Stone, of Birmingham, for appellee.

THOMAS J.

The general demurrer does not serve the purpose of a special demurrer, in that as against the former all amendments of form that may be added are considered as made. Whiteman v. Taber, 203 Ala. 496, 501, 83 So. 595, Lunsford v. Marx, 214 Ala. 37, 106 So. 336. However, many grounds of demurrer to the bill were thereafter added, not directed however to the different phases of the bill.

The bill is filed in a double aspect, and one phase thereof contained equity. It is averred that there were contract relations of the parties for maintenance of light wires across complainant's tracks, and not for telephone wires that without express or implied permission the poles, set under contract on and across the right of way, were subjected to an unauthorized or superadded use, and without the contract right, knowledge, or permission of complainant; and that such superadded agency and burden, as placed and maintained by defendant, caused the injury and damages required of satisfaction by complainant, in response to its primary liabilities as a common carrier to third parties who were passengers, and which damages were proximately caused by defendant's unauthorized acts as to its ways. That is to say, these theories for relief sought were under the doctrine of contribution or analogous principles, and reimbursement per contract for injuries and damages that, in a way, grew out of an indemnity contract for setting light poles on the railroad's right of way on which low...