Gulf, C. & S. F. Ry. Co. v. McBride
| Decision Date | 24 January 1958 |
| Docket Number | No. 3352,3352 |
| Citation | 309 S.W.2d 846 |
| Court | Texas Court of Appeals |
| Parties | GULF, COLORADO AND SANTA FE RAILWAY COMPANY, Appellant, v. G. C. McBRIDE et al., Appellees. |
Woodruff & Holloway, Brownwood, Hudson, Keltner & Sarsgard, Ft. Worth, for appellant.
McMahon, Smart, Sprain & Wilson, Abilene, Richey, Sheehy & Teeling, Waco, for appellees.
This is a summary judgment case. Gulf, Colorado and Santa Fe Railway Company brought suit against G. C. McBride, d/b/a G. C. McBride Company, and against Central Surety and Insurance Company. The plaintiff railway company sought recovery against G. C. McBride under an indemnity provision of a lease contract and under the right to common law indemnity for the amount paid by plaintiff to its employee, C. F. England, Jr., as the result of injuries he sustained while switching railroad cars on the premises leased by McBride from plaintiff. Plaintiff sought judgment against Central Surety and Insurance Company on a performance bond given by McBride, to recover any amount which it was held liable to pay as surety on the bond. Plaintiff railway company and McBride both filed motions for summary judgment. After a hearing the court overruled plaintiff's motion, but granted the motion of McBride and accordingly entered judgment that plaintiff take nothing in its suit against McBride. Since the action of the court adversely disposed of plaintiff's right to recover under the surety bond, the court also entered a take-nothing judgment in favor of the Central Surety and Insurance Company. Gulf, Colorado and Santa Fe Railway Company has brought this appeal in which it complains of the take-nothing judgment against it and also of the action of the court in overruling its motion for summary judgment against appellees.
The record shows without dispute that on October 28, 1952, and for some time prior thereto, appellant railway company owned certain land in Brown County, Texas, upon which it constructed a rock crusher and necessary facilities and equipment in connection therewith for the production of crushed rock, screenings, rip rap and other similar type materials.
On October 28, 1952, appellant railway company leased its rock crushing plant and the land and facilities in connection therewith to appellee McBride, who was an experienced quarry and crusher operator. The lease agreement referred to and identified the land, quarry, rock crusher and appurtenant equipment and facilities as the 'plant'. By the terms of the lease appellant railway company had the right to purchase from McBride all of the output of the plant for use by appellant on any of its railway lines including the entire Santa Fe system. The right of appellant to purchase the material produced at the plant was at an agreed price per cubic yard of different specified materials, loaded on cars direct from the crusher bins, all f. o. b. cars at the plant. Under the terms of the lease contract McBride was to quarry and process for commercial purposes only such materials as constituted surplus output over and above the requirements of appellant for the Santa Fe system. By the terms of the lease appellee McBride also agreed:
'To release and discharge railway company from all liability because of loss of or damage to contractor's property, and to indemnify and save railway company harmless from liability because of loss or damage to the property of others whomsoever, and injury to or death of persons whomsoever arising from, growing out of or in any manner incident to the use, operation, maintenance or state of repair of the 'plant', except loss or damage caused by fire not the result of the negligence of contractor or its employees; and to promptly repay and sum or sums which railway company may pay, or be compelled to pay, and discharge any judgment or judgments which may be rendered against it because thereof.'
It is undisputed that on April 10, 1954, the above contract was in full force and effect. On that date C. F. England, Jr., who was employed as an engine foreman by appellant railway company sustined an injury in the discharge of his duties for the company. The injury occurred while he was engaged in the process of switching a number of empty railway cars to the storage area of the plant for the use of appellee McBride. At the time of his injury England was climbing the loading ramp at the plant for the purpose of transmitting signals between the switchman and the engineer. He was trying to get over a large timber which was on the ramp, and in doing so fell and thereby received personal injuries to his body. He made claim against appellant railway company under the Federal Employers' Liability Act, 45 U.S.C.A. Sec. 51 et seq. Appellant settled the claim and brought this suit against McBride and the surety on his bond under the above quoted terms of the lease contract to recover the amount paid to England.
It is urged in appellant's first point that the Court erred in entering the summary take-nothing judgment against appellant for the reason that there is at least a genuine issue of fact to decided. The point is well taken. Appellee's...
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Gulf, Colorado & Santa Fe Railway Co. v. McBride
...judgment was rendered in favor of the Surety Corporation. This was reversed and the cause remanded by the Court of Civil Appeals. 309 S.W.2d 846. One of McBride's defenses-and a ground urged in his motion for summary judgment-was that the injury to England did not arise from, grow out of an......