Halstead v. NORFOLK AND WESTERN RAILWAY COMPANY

• Decision Date: 14 December 1964
• Docket Number: Civ. A. No. 1099.
• Citation: 236 F. Supp. 182
• Parties: Franklin D. R. HALSTEAD, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff, v. ANDERSON'S BLACK ROCK, INC., Third-Party Defendant.
• Court: U.S. District Court — Southern District of West Virginia

236 F. Supp. 182

Franklin D. R. HALSTEAD, Plaintiff, v. NORFOLK AND WESTERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff, v. ANDERSON'S BLACK ROCK, INC., Third-Party Defendant.

Civ. A. No. 1099.

United States District Court S. D. West Virginia, at Huntington.

December 14, 1964.

L. Eugene Dickinson, Charleston, W. Va. (Lane & Preiser, Charleston, W. Va., on brief), for plaintiff.

Zane Grey Staker, Williamson, W. Va. (Slaven & Staker, Williamson, W. Va., on brief), for defendant and third-party plaintiff.

Edwin W. Conley, Huntington, W. Va. (Huddleston & Bolen, Huntington, W. Va., on brief), for third-party defendant.

CHRISTIE, District Judge:

This case is before this court pursuant to Rule 56 of the Federal Rules of Civil Procedure, 28 U.S.C.A., upon a motion for summary judgment made by the third-party defendant, Anderson's Black Rock, Inc. (hereinafter referred to as "Black Rock"), on the grounds that the third-party complaint fails to state a claim upon which relief can be granted and that, since Black Rock has made payments to the plaintiff under the applicable provisions of the West Virginia Workmen's Compensation Act, further recovery for the injury is barred. For the reasons hereinafter stated, it is the decision of this Court that the motion should be granted.

On August 9, 1960, plaintiff was engaged in the course of his employment for Standard Asphalt & Tar Company, the predecessor of Black Rock, working inside a Norfolk & Western railroad car containing crushed limestone. The third-party plaintiff will hereinafter be referred to as "N & W" and the third-party defendant as "Black Rock." The gondola car was being unloaded by means of a "clam shell" crane owned and operated by plaintiff's employer, the predecessor of Black Rock. While Halstead was so engaged, the "clam shell" became momentarily caught on a piece of metal which was welded to the side of the car. As a result, the "clam shell" broke loose and crushed Halstead's arm against the side of the car, necessitating its amputation four inches below the elbow.

N & W had carried the crushed limestone from a quarry in Virginia to Black Rock's private siding at Logan, West Virginia. The material was shipped under a standard bill of lading.

Plaintiff in his complaint, originally filed in the Circuit Court of Kanawha County, West Virginia, against N & W alleged that it was negligent (1) in welding the piece of metal to the inside of the railroad car, (2) in allowing the car to be filled with stone to a height above the piece of metal so as to conceal it, and (3) in failing to warn the plaintiff of its presence. Upon removal of this case to this court from the state court, N & W answered denying these acts of negligence and filed a third-party complaint against Black Rock alleging that Black Rock failed to unload its own material in accordance with the provisions of its contract of carriage and certain applicable provisions of the Interstate Commerce Commission statutes, rules, and regulations. The prayer was that Black Rock be made a third-party defendant and adjudged liable to N & W for all sums that may be adjudged against N & W in favor of plaintiff. It should here be noted that N & W negotiated a settlement with plaintiff, after first reaching an understanding with Black Rock that the settlement would be without prejudice to N & W's rights against Black Rock in the third-party proceeding. It should also be noted that there is no question but that plaintiff's injuries were received in the course of and as a result of his employment and that his employer, Black Rock, was and is insulated against liability to him for negligence by the provisions of the Workmen's Compensation Act. He applied for and has received benefits under that Act.

For the purposes of this motion, Black Rock does not dispute the factual allegations of the third-party complaint, and on this basis both parties, Black Rock and N & W, agree that there are no material factual differences existing precluding a determination of the question upon a motion for summary judgment.

The primary issue would, therefore, seem to be one of whether there is a contract of indemnity between Black Rock and N & W which will allow N & W to recover from or be indemnified by Black Rock. If there is no such contract, recovery against Black Rock is barred by the exclusive liability provisions of the Workmen's Compensation Act. In this regard, Black Rock contends that there is no contract of indemnity between it and N & W that would make it liable for all or any part of the settlement made by N & W with the plaintiff. While N & W concedes, in its brief, the lack of "express language" formulating a contract of indemnity, it, nevertheless, contends that the relationship between N & W and Black Rock, with reference to the shipment, created both a contractual and statutory duty under the law upon the part of Black Rock to perform the unloading operation in a "safe and proper manner," which it failed to perform, thereby causing the accident and the resulting loss. To establish such a duty, N & W relies upon the terms of the bill of lading and the Interstate Commerce Commission tariff regulations applicable thereto, specifically including Uniform Freight Classification 5, Rule Number 27, Section 1. These are all parts of the record in the case.

There is no dispute that the limestone was shipped under a bill of lading and that the bill of lading included, although not expressly written into it, a tariff provision, Rule 27, Sec. 1, Uniform Freight Classification, Page 141, that:

"Owners are required to load into or on cars, freight for forwarding by rail carriers, and to unload from cars freight received by rail carriers, carried at CL ratings or rates, except where tariff of carrier at point of origin or destination of stopover station (as the case may be) provides for loading or unloading of CL freight by carrier."

Primarily, on the basis of General Electric Company v. Moretz, 4th Cir., 270 F.2d 780, N & W contends that the above-quoted tariff provision establishes the requisite contract of indemnity upon which it can recover against Black Rock. In that case, the Fourth Circuit Court of Appeals held that, generally, relevant statutes and regulations existing at the time the contract is made become part of the contract and must be read into it just as if they were expressly referred to or incorporated in its terms. In that case it was held that the tariff provisions plus the regulations issued by the Interstate Commerce Commission, relating to interstate common carriers by motor vehicles, and under the factual situation there appearing, created a contractual relationship between the parties which would allow indemnity. There the rules and regulations were very clear and specific as to the duties imposed and not, as in the instant case, merely a general statement as to which party was required to load and unload freight received by the rail carrier and carried at carload rates. To more clearly understand the distinction between the two cases, a résumé of the facts in the Moretz case is necessary.

Moretz, a truck driver for Mason & Dixon Lines, an interstate common carrier, sustained personal injuries when his truck overturned while transporting certain heavy equipment belonging to General Electric Company. He brought suit against General Electric on the ground that the accident was caused by its negligence in loading the cargo, in that it was not properly braced, thus permitting it to shift in the course of the journey thereby causing the truck to overturn. To this charge, General Electric answered denying any negligence, and filed a third-party complaint against Mason & Dixon, contending therein that the accident was the fault of the carrier, and claiming indemnity for any damages which Moretz might recover from it. In response to the third-party complaint, Mason & Dixon answered, in effect denying liability, and moved for dismissal on the ground that it was a subscriber to the Workmen's Compensation Act and that Moretz's right to benefits thereunder was exclusive of all other rights and remedies against his employer. Without passing on the motion, the trial court submitted the issue of General Electric's primary negligence and its liability to Moretz to the jury who returned a verdict in his favor. The court then submitted a special interrogatory to the jury as to whether Mason & Dixon was guilty of negligence which proximately contributed to the accident and the resulting injuries, to which the jury answered in the affirmative.

The Interstate Commerce Commission, acting under the authority of 49 U.S.C.A. § 304, has promulgated certain rules and regulations regarding the transportation of property by motor carriers. These regulations provided, among other things, that "no motor vehicle shall be driven unless the driver thereof shall have satisfied himself that the tailboard or tailgate, tarpaulins, spare tires, and all means of fastening the load are securely in place," C.F.R., 193.9(b).

It was shown that Moretz complied with this regulation and reported to the terminal officials of his employer, Mason & Dixon, that the load was not properly braced, but they did nothing about it. The jury apparently absolved him of any contributory negligence because of the showing that before the truck was turned over to him the doors to the trailer were sealed and that the rules of his employment forbade his breaking same short of destination. As the matter thus stood, both General Electric and Mason & Dixon were assessed with blame insofar as Moretz was concerned.

The next inquiry in the Moretz case concerned the relative rights of the two joint-tortfeasors toward each other. In reaching a determination of this question, the trial court drew on the bill of lading covering the shipment, issued under a published tariff of Southern Motors Carriers, filed with the Interstate Commerce Commission, for the...