Kansas City, M. & B. R. Co. v. Southern Railway News Co.

• Decision Date: 14 June 1899
• Citation: 52 S.W. 205,151 Mo. 373
• Court: Missouri Supreme Court
• Parties: KANSAS CITY, M. & B. R. CO. v. SOUTHERN RAILWAY NEWS CO.

52 S.W. 205

151 Mo. 373

KANSAS CITY, M. & B. R. CO. v. SOUTHERN RAILWAY NEWS CO.

Supreme Court of Missouri, Division No. 1.

June 14, 1899.

CARRIERS — INSURANCE AGAINST LIABILITY FOR NEGLIGENCE — CONTRACT OF INDEMNITY.

1. Common carriers may insure themselves against losses occurring from injuries to passengers proceeding from the negligence of their servants, without violating any rule of public policy.

2. A contract entered into by a news company, wherein it agrees to indemnify a railroad company for, and save it harmless from, all damages it may have to pay by reason of any injury to the news company's employés, whether caused by the negligence of the railroad employés or otherwise, does not violate any rule of public policy.

3. Where the findings of fact by the court are supported by the evidence, they are conclusive on appeal.

4. Where one contracts to protect another from liability, he is bound by the result of a litigation to which such other is a party, provided he had notice of such litigation and opportunity to control and manage it; and the fact that the litigation was settled without his consent does not affect his liability, where the settlement was made in good faith, founded on a legal liability, and for a reasonable amount.

Appeal from circuit court, Jackson county; John W. Henry, Judge.

Action by the Kansas City, Memphis & Birmingham Railroad Company against the Southern Railway News Company. From a judgment for plaintiff the defendant appeals. Affirmed.

Wallace & Wallace, for appellant. Pratt, Dana & Black, for respondent.

BRACE, P. J.

On the 28th of December, 1889, the plaintiff and defendant entered into a written contract by which the plaintiff, for and in consideration of the sum of $1,500, and of the covenants of the defendant therein contained, granted to said news company the privilege of selling upon its regular passenger trains during the year beginning January, 1890, "periodicals, newspapers, books, confections, fruits, cigars, cakes, pies, and sandwiches," under certain conditions and regulations therein set out; said contract containing, among others, the following covenants upon the part of the defendant, to wit: "And, in consideration of the foregoing grant and the privileges therein specified, said news company releases said railroad company from any right of action, claim, or demand which may accrue to it by reason of the loss of any of its property while being transmitted on any of the trains of the railroad company under the terms of this contract, and further agrees, for such consideration, to indemnify said railroad company and save it harmless from all claims, demands, damages, actions, costs, and charges to which the railroad company may be subject, or which it may have to pay, by reason of any injury to any person or property, or loss of life or property, suffered or sustained by any agent or employé of the news company while in, upon, or about any of the stations, platforms, cars, or other premises of the railroad company, whether such injuries or loss arise from the negligence of the employés of said railroad company or otherwise." This is an action for damages for a breach of the second covenant aforesaid, in which the plaintiff recovered judgment in the circuit court of Jackson county for the sum of $5,000, and the defendant appeals.

The case was tried by the court without a jury, the court finding the facts to be as follows:

"(1) Plaintiff is a railroad corporation owning and operating at the times mentioned in the amended petition a line of railway in the states of Tennessee, Mississippi, and Alabama; and defendant is and was at the same times a corporation organized and existing under the laws of Kentucky, and having an office for the transaction of its usual and customary business in Jackson county, Missouri, and at such times was engaged in selling newspapers, books, periodicals, and merchandise on railroad trains throughout the country, through agents and servants commonly and generally known as `newsboys,' and in conducting such business it was usual and necessary for such agents and servants to pass back and forth from car to car on the trains while the latter were in motion.

"(2) On December 28, 1889, plaintiff and defendant entered into a written contract, a copy of which is set forth in the amended petition filed herein, on the 22d day of February, 1896.

"(3) That pursuant to the terms of said contract said plaintiff throughout the year 1890 received and carried upon its trains the agents, employés, and merchandise of said defendant placed thereon by the latter, and afforded such agents and employés facilities for selling and offering for sale such merchandise; that among such agents and employés of said defendant was one George W. Davis, who, in the course of his employment, and acting as agent for defendant, did on the 21st day of October, 1890, at plaintiff's station of Birmingham, Alabama, under the provisions of said contract, enter and go upon one of plaintiff's passenger trains with the merchandise furnished him by said defendant, and for the purpose of selling the same thereon; that on the same day, while said train was moving over plaintiff's said road between said Birmingham and the station of Ensley, and while in said state of Alabama, it came in collision with another train on plaintiff's road, and in consequence thereof said George W. Davis while so on said passenger train as an agent and employé of said defendant as aforesaid received injuries from which he subsequently died. Such collision occurred and such death was caused by the negligence of plaintiff's employés in the operation of such train, and the personal representatives of Davis were thereby damaged in the sum of $5,000.

"(4) By the laws of Alabama in force at the time, the plaintiff became and was liable to the personal representative of such Davis for such damages as were occasioned by the negligence aforesaid. Section 2589 of volume 1 of the Civil Code of Alabama of 1886, then in force, provided as follows: `2589-(2641, 2642, 2643). Action for Wrongful Act, Omission or Negligence Causing Death. A personal representative may maintain an action and recover such damages, as the jury may assess for the wrongful act, omission or negligence of any person or persons or corporations, his or their servants or agents, whereby the death of his testator or intestate was caused, if the testator or intestate could have maintained an action for such wrongful act, omission or negligence, if it had not caused death; such action shall not abate by the death of the defendant, but may be revived against his personal representative; and may be maintained though there has not been prosecution or conviction or acquittal of the defendant for such wrongful act or omission or negligence, and the damages recovered are not subject to the payment of the debts or liabilities of the testator or intestate, but must be distributed according to the statute of distributions. Such action must be brought within two years from and after the death of the testator or intestate.'

"(5) That the true construction of said statute, as decided by the supreme court of Alabama, which is the court of last resort in that state, is and was that a person entitled to recovery at all thereunder may recover any amount which a jury may see fit to allow; there being no limit fixed by law to the amount of the verdict which a jury may render in an action under said statute.

"(6) George W. Davis received his injuries on the 21st day of October, 1890, and died therefrom on the 29th day of November, 1890; and his administrator instituted a suit in the city court of Birmingham, Alabama, on February 2, 1891, against plaintiff for $50,000 damages for such injuries received, as claimed, through the negligence of the plaintiff. Plaintiff herein was duly served with process in such suit, which was on the 18th day of June, 1891, dismissed.

"(7) After the death of George W. Davis, and on the 2d day of February, 1891, the probate court of Jefferson county, Alabama (a court, having, under the laws of Alabama, full jurisdiction), appointed Eugene S. Smith as the administrator of said Davis; and under the laws of Alabama said administrator became and was the personal representative of said Davis, and entitled to have and recover the damages authorized by the laws of Alabama for the death of said Davis through the negligence of the employés of plaintiff.

"(8) On the 19th day of June, 1891, Eugene S. Smith, administrator of George W. Davis, deceased, instituted in the circuit court of Walker county, Alabama (a court of competent jurisdiction under the laws of Alabama), a suit against plaintiff for $50,000 damages for the death of said Davis through the negligence of the plaintiff's employés. The plaintiff herein, as defendant therein, was duly summoned with process in accordance with the laws of Alabama. On the 16th day of February, 1892, said suit was dismissed.

"(9) On the 18th day of September, 1891, Eugene S. Smith, as administrator of George W. Davis, deceased, filed in the city court of Birmingham, Alabama (a court of competent jurisdiction under the laws of Alabama), a suit against this plaintiff for $20,000 damages for the death of George W. Davis through the negligence of this plaintiff's employés. Process was served on this plaintiff as required by the laws of Alabama, and this plaintiff, as defendant therein, entered its appearance to said suit. A jury was duly empaneled in said cause, and on the 18th day of September, 1891, rendered a verdict for the administrator, assessing the damages at $5,000, for which amount said court on the 18th day of September, 1891, rendered judgment in favor of the said administrator and against this plaintiff for $5,000, which judgment this plaintiff on the 18th day of September, 1891, paid to said Eugene S. Smith, administrator of said Davis.

"(10) As a matter of fact the verdict and...