Georgia Ports Authority v. Central of Georgia Ry. Co.

• Decision Date: 03 September 1975
• Docket Number: No. 50709,No. 1,50709,1
• Citation: 135 Ga.App. 859,219 S.E.2d 467
• Parties: GEORGIA PORTS AUTHORITY v. CENTRAL OF GEORGIA RAILWAY COMPANY et al
• Court: Georgia Court of Appeals

Page 467

219 S.E.2d 467

135 Ga.App. 859

GEORGIA PORTS AUTHORITY v. CENTRAL OF GEORGIA RAILWAY COMPANY et al.

No. 50709.

Court of Appeals of Georgia, Division No. 1.

Sept. 3, 1975.

Rehearing Denied Sept. 29, 1975.

Ogden Doremus, Metter, for appellant.

Miller, Beckmann & Simpson, John B. Miller, Lamar W. Davis, Jr., Savannah, Billy E. Moore, Columbus, for appellees.

MARSHALL, Judge.

This case had its genesis in a complaint by one Mitchell against the Central of Georgia Railway Company and Georgia Ports Authority in which he alleged he suffered injuries while engaged in duties for his employer, the Central of Georgia, which owned and operated an interstate commerce railroad, but was operating at the time on the property of the Georgia Ports Authority consisting of State-owned tracks in the Authority's dock area situated in Chatham County, Georgia.

Mitchell alleged that the Central of Georgia employed a switch engine crew and that he was one of the members of that crew. He further alleged the Central of Georgia required him to work on and around tracks which were 'unsafe' and the Ports Authority allowed an open drain hole to be located on the walkway in the vicinity of the tracks used to service the docks. In effect, Mitchell alleged the Central of Georgia was negligent in requiring him to work in that portion of the dockes when the area was unsafe, and that the Ports Authority was negligent in allowing an unsafe condition to exist by not properly lighting the area and allowing a drain hole to be uncovered. As a result of the negligence of both parties defendant, Mitchell, complained he fell into the drain hole and was injured. Mitchell conceded he was not employed by the Ports Authority, but based his claim against them on simple negligence. He predicated his claim against Central of Georgia, an interstate carrier, upon the provisions of the Federal Employer's Liability Act. That Act, he claimed, imposed a statutory duty upon his employer to furnish its employees a safe place in or upon which to work.

The Central of Georgia, appellee in this case, filed a cross claim against the Ports Authority, appellant herein, in which it alleged the Ports Authority was liable to the Central of Georgia under an indemnification agreement with the Central of Georgia for any damages which might be recovered against it and to indemnify and hold harmless the railway from and against any and all claims resulting from negligence, or other causes, arising from or in connection with the use of engines or rail cars of the railroad upon the privately owned spur tracks of the Ports Authority. In its answer to the cross claim, the Ports Authority maintained that under the allegations of Mitchell's complaint, if there was any responsibility to Mitchell for injuries sustained by him, it was based solely upon a negligent omission by the Central of Georgia of its statutory duty to furnish a safe place to work, as opposed to a common law right of recovery based upon the negligence of a tortfeasor, and that the federal statute was the sole basis of recovery. Since the statutory basis of indemnity was not specifically included in the agreement, the Ports Authority contends there was no liability under that agreement running from the Ports Authority to the Central of Georgia in this particular case.

During the course of the trial, a settlement was made by both defendants with Mitchell and a consent verdict was entered in the sum of $74,150.00 with court costs to be paid by each defendant on a 50-50 basis. The rights of the defendants in the cross claim were reserved with no questions to be raised as to the reasonableness or voluntariness of the settlement based upon the fact that it was a settlement rather than an adversary judgment and verdict.

Each defendant in the original case filed a motion for summary judgment in the cross claim, the Central of Georgia resting on the indemnification agreement and the Ports Authority contending the indemnification agreement did not apply to liability of the Central of Georgia arising out of the Federal Employers' Liability Act. The Ports Authority brings this appeal from the judgment and order of the trial court sustaining the motion for summary judgment in favor of the Central of Georgia. Held:

Appellant, Georgia Ports Authority, asserts that within the terms of the original plaintiff Mitchell's complaint, liability to him by the Central of Georgia was based upon a statutory remedy founded in statute (the F.E.L.A.; 45 U.S.C.A. § 51 et seq.) whereas liability to him by the Ports Authority (not a carrier engaged in interstate commerce) would necessarily be based upon common law principles of negligence by a tortfeasor. Appellant concedes it was proper to sue both defendants in the same cause of action (Ga.L.1966, pp. 609, 631 (Code Ann. § 81A-120); Bibb County v. McDaniel, 127 Ga.App. 129, 131, 192 S.E.2d 544), but denies that the indemnity agreement, in the absence of express language to that effect, covered the special statutory liability created by the Federal Employers' Liability Act, and because of its general language, the agreement could not be construed to include indemnification where the indemnitee's liability is predicated upon one theory and the indemnitor's liability is predicated upon yet another. These are the issues raised by the first, second, fifth and sixth enumerations of error.

In pertinent part the indemnity agreement provided: 'The Authority (Georgia Ports) will also indemnify and save harmless the Railway from and against any and all claims, demands, suits, or judgments for sums of money to any person, corporation, firm or individual, accruing for loss of life, or injury or damage to person or property resulting from negligence or other causes, and arising from or in connection with the operation of the aforesaid engines, or the aforesaid delivery of any car by the Railway on the aforesaid tracks of the Authority; excepting loss, damage, injury or homicide resulting from the sole negligence of the railway.'

Appellant contends that the general language in the indemnity contract cannot make it, the indemnitor, liable for the statutory liability of the indemnitee in the absence of express language to that effect in the agreement. It asserts the words 'or other causes' in the agreement are so general as to preclude indemnification under the specific grounds found by the trial court. Batson-Cook Co. v. Georgia Marble etc. Co., 112 Ga.App. 226, 144 S.E.2d 547. It further asserts that wher the parties to an indemnity agreement fail to refer expressly to statutory liability in their agreement, such failure evidences the parties' intention not to provide for such indemnity for the indemnitee's negligence. Bohannon v. Southern Railway Co., 97 Ga.App. 849, 850, 104 S.E.2d 603.

Appellant's position is unsound. It is not necessary in an indemnity...