Kay v. Pennsylvania R. Co., 32610

• Decision Date: 30 January 1952
• Docket Number: No. 32610,32610
• Citation: 103 N.E.2d 751,46 O.O. 417,156 Ohio St. 503
• Parties: , 46 O.O. 417 KAY v. PENNSYLVANIA R. CO. et al.
• Court: Ohio Supreme Court

Page 503

156 Ohio St. 503

103 N.E.2d 751, 46 O.O. 417

KAY v. PENNSYLVANIA R. CO. et al.

No. 32610.

Supreme Court of Ohio.

Jan. 30, 1952.

Syllabus by the Court.

1. Contracts of indemnity purporting to relieve one from the results of his negligence must be construed strictly.

2. The intention to provide such indemnification must be expressed in clear, unequivocal terms.

3. Where, in a contract of indemnity, general words follow specific terms, the meaning of the general words will, under the rule of ejusdem generis, be limited to things of the same kind, class or nature as those specifically enumerated. George H. Dingledy Lumber Co. v. Erie R. Co., 102 Ohio St. 236, 131 N.E. 723, approved and followed.

4. Such a contract to indemnify for loss and damage resulting from the negligent operation on an 'unloading machine and appurtenances or other buildings, structures or fixtures' does not impliedly include loss or damage arising from the negligent operation of a drawbridge.

In the Court of Common Pleas the plaintiff, George H. Kay, filed an amended petition asking damages from the defendants, The Pennsylvania Railroad Company and The Orr Felt & Blanket Company, for injuries suffered to his person on May 29, 1947, when his head struck an overhead drawbridge while he was riding as a brakeman on the top of a freight car moving along a track of the railroad company adjacent to the buildings of the blanket company plant in the city of Piqua, Ohio.

The railroad company filed an amended counterclaim for a declaratory judgment against the blanket company to the effect that the latter company is obligated to indemnify the railroad company for any amount the plaintiff may recover from the railroad company for its negligence.

On the counterclaim the trial court rendered a declaratory judgment in favor of the railroad company and against the blanket company.

On an appeal to the Court of Appeals on questions of law, the judgment of the trial court was reversed unanimously, and a final declaratory judgment was rendered against the railroad company on its counterclaim.

The cause is in this court for a review by reason of the allowance of the railroad company's motion to certify the record.

Squire, Sanders & Dempsey and James C. Davis, Cleveland, for appellant.

McConnell, Blackmore, Cory & Burke and S. Burns Weston, Cleveland, for appellee.

WEYGANDT, Chief Justice.

The railroad company's claim for indemnity is based on a series of four agreements executed between the railroad company and the blanket company in the years 1918, 1920, 1921 and 1941.

The precise question is whether the drawbridge here involved is inferentially included in the indemnity provisions of one or more of the four contracts.

Fortunately many features of this controversy are not in dispute.

The facts are conceded and are provided by stipulations.

Counsel are in agreement as to the applicable law. They cite and rely on the unanimous decision of this court in the case of George H. Dingledy Lumber Co. v Erie R. Co., 102 Ohio St. 236, 131 N.E. 723, in which the syllabus reads as follows:

'1. Public policy requires that contracts of indemnity purporting to relieve one from the results of his failure to exercise ordinary care shall be strictly construed, and will not be held to provide such indemnification unless so expressed in clear and unequivocal terms.

'2. Where, in a contract of indemnity, general words are used after specific terms, the general words will be limited in their meaning to things of like kind and nature as those specified.

'3. Such principle of construction should be applied to the contract of indemnity involved in this case, and an undertaking to save harmless from loss, damage, or injury 'by fire or otherwise' includes only loss, damage, or injury arising from fire or causes kindred thereto, and does not include injury caused to an employe of the lessee by the negligent operation of the lessor's locomotive.'

And in his opinion in that case 102 Ohio St. at page 242, 131 N.E. at page 725, Matthias, J., makes the following comment: 'Public policy clearly requires that such contracts shall be restricted, rather than extended. It is a fundamental rule in the construction of contracts of indemnity that such a contract shall not be construed to indemnify against the negligence of the indemnitee, unless it is so expressed in clear and unequivocal terms. 14 R.C.L. 47. The liability of such indemnity is regarded to be so hazardous, and the character of the indemnity so unusual and extraordinary, that there can be no presumption that the indemnitor intended to assume the liability unless the contract puts it beyond doubt by express stipulation. It cannot be established by inference, from words of general import.'

Then, 102 Ohio St. on page 245, 131 N.E. on page 725, appears further comment as follows 'It is clear that the parties did intend that the indemnification agreement should cover loss or damage by fire. That purpose is plainly expressed by the contract. It is not clear what other causes of loss or damage were contemplated. The principle of construction known as ejusdem generis therefore should be applied in determining what is included in the term 'by fire or otherwise.' The application of that rule would require that, where an enumeration of specific things is followed by some more general word or phrase, such general word or phrase should be held to include only things of the same general nature as those specified. If that rule of construction be applicable here, then the indemnity provision would cover only such loss, damage, or injury as was occasioned by fire or kindred causes, such as smoke, water, etc.'

In the instant case the vigorous conflict between the parties comes in the task of applying the agreed law to the agreed facts. The railroad company insists that the language of the indemnity provisions is clear and unequivocal; the blanket company contends that it is not. But the parties agree that the rule of ejusdem generis should be applied.

Although four contracts are here involved and although they were prepared by the railroad company itself, the drawbridge which caused the plaintiff's injuries is not mentioned either in any contract or in the plat attached thereto.

In the 1918 contract the blanket company was given the right to use the sidetrack and also the right to construct 'a shed or covering over and across said sidetrack and connecting the two buildings' of the blanket company. The agreement contained the further provision that the blanket company 'agrees not to erect, or allow to be erected, any building, structure or fixture of any kind in dangerous proximity to said track, and will protect, indemnify and save harmless the first party against loss, damage and expense in consequence of injury to person or property by reason of such structure or fixture.'

By the terms of the 1920 contract the blanket company was granted the right to erect an unloading machine adjacent to the sidetrack. The railroad company relies strongly on the indemnity provisions of this agreement reading as follows: 'The second party agrees to indemnify, protect and save harmless the first party, its successors and assigns, from all liens, actions, costs, loss and damage growing out of or resulting from injuries to persons or...