Houston & T. C. R. Co. v. Diamond Press Brick Co.

• Decision Date: 02 June 1920
• Docket Number: (No. 138-3050.)
• Citation: 222 S.W. 204
• Parties: HOUSTON & T. C. R. CO. v. DIAMOND PRESS BRICK CO.
• Court: Texas Supreme Court

222 S.W. 204

HOUSTON & T. C. R. CO. v. DIAMOND PRESS BRICK CO.

(No. 138-3050.)

Commission of Appeals of Texas, Section A.

June 2, 1920.

Error to Court of Civil Appeals of Sixth Supreme Judicial District.

Action by the Houston & Texas Central Railroad Company against the Diamond Press Brick Company. From a judgment of the Court of Civil Appeals (188 S. W. 32), affirming a judgment for defendant, plaintiff brings error. Reversed and rendered.

John H. Sharp, of Ennis, and Jno. T. Garrison, of Houston, for plaintiff in error.

G. C. Groce, of Waxahachie, for defendant in error.

SPENCER, J.

The Houston & Texas Central Railroad Company, plaintiff, sued the Diamond Press Brick Company, defendant, a corporation, to recover the amount of a judgment one Henry Hamilton had recovered against it. Hamilton's action was based upon plaintiff's negligence in permitting a crossing on a spur track running to defendant's brick plant to become unsafe, alleging that in attempting to drive over it in its dangerous condition his team became frightened and ran away, resulting in personal injuries.

The railroad company based its action for recovery upon a contract entered into with the brick company under the terms of which the railroad company had built and was maintaining a spur track to the plant of the brick company for the convenience of the latter. The material provisions of the contract necessary to a decision of the case are:

"Fourth. It is agreed and understood that the said party of the second part shall bear the expense of keeping the said spur track in good condition, and that it will, upon receipt of bills therefor, promptly reimburse the party of the first part for any and all expense incurred by it for material and labor furnished in making such repairs as may be necessary to keep the said spur track in first-class condition."

"Seventh. The party of the second part further agrees and obligates itself to save the party of the first part harmless from any and all claims for damages arising from any cause whatsoever growing out of the construction, maintenance, and operation of said spur track, including damages for injury to or killing of stock belonging to the party of the second part, its employés or tenants, whether such claim is made by any person, firm, corporation, or municipality. The party of the second part further agrees and binds itself to reimburse the said party of the first part for any and all amounts it may be compelled to pay in settlement of any claim for which, under the terms of this agreement, the party of the second part would be liable."

The defendant contended (1) that it was not within the contemplation of the parties that the brick company was to be responsible for the negligence of the railroad company in this character of case; (2) that if the contract be construed as requiring reimbursement to the railway company, it would be against public policy and therefore void; and (3) that the same is an ultra vires act on its part, and hence unenforceable. The court, upon motion of defendant, sustained exceptions to plaintiff's petition, and, plaintiff refusing to amend, judgment was rendered in favor of defendant. Upon appeal, the Court of Civil Appeals affirmed the judgment. 188 S. W. 32. The writ was granted upon application referred to the Committee of Judges.

The proximate cause of the damages suffered by plaintiff, as shown by the pleadings, and for which it seeks indemnity under the contract, was due to its negligence in failing to maintain the crossing in first-class...