Liberty Mut. Ins. Co. v. Adams

CourtUnited States State Supreme Court of Idaho
Citation91 Idaho 151,417 P.2d 417
Docket NumberNo. 9640,9640
PartiesLIBERTY MUTUAL INSURANCE COMPANY, a corporation, and American Porato Company, a corporation, Plaintiffs-Respondents, v. Ferris C. ADAMS, and Union Pacific Railroad Company, a corporation, Defendants-Appellants.
Decision Date14 July 1966

E. C. Phoenix and D. A. Bybee and F. L. Ringe, Pocatello, Bryan P. Leverich, Salt Lake City, Utah, for appellants.

Milton E. Zener and Vern E. Herzog, Jr., Pocatello, for respondents.

McFADDEN, Chief Justice.

This action was instituted by the corporate plaintiffs-respondents, Liberty Mutual Insurance Company and the American Potato Company (referred to herein as the Insurance Company and the Potato Company respectively), against the defendants-appellants, Ferris C. Adams and the Union Pacific Railroad Company, a corporation (referred to herein as the Railroad Company). The plaintiffs sought to recover payments made under the workmen's compensation law by the Insurance Company as surety for the Potato Company to respondent Adams by reason of injuries Adams sustained in an industrial accident. The respondents sought judgment against the Railroad Company for the sum paid Adams, by reason of an indemnity agreement which was a part of a settlement of a personal injury claim by Adams against the Railroad Company. Respondents' claim for reimbursement is predicated upon the provisions of I.C. § 72-204 1

The Railroad Company filed its counterclaim against the respondents seeking recovery of the amount it paid Adams in settlement of his claim against the Railroad Company, this being based on indemnity agreements contained in two separate agreements, between the Railroad Company and the Potato Company, which agreements are designated as an 'Industry Track Contract' and a 'Private Road Crossing Contract.' 2

Following trial the court entered findings of fact, conclusions of law and gave judgment for respondents against both Adams and the Railroad Company, for reimbursement of workmen's compensation payments made to Adams, and denied the Railroad Company's claim for sums it paid to settle Adams' claim against it; from the judgment this appeal was taken.

The facts leading to this controversy are as follows: At the end of their normal shift at midnight, January 15, 1962, Adams and three other employees of he Potato Company at its plant near Blackfoot, were required to remain on duty to help in the switching of a boxcar partially loaded with dehydrated potato products of the company. This boxcar was situate adjacent to the company's plant, on a 1,181 foot long deadend spur track which was connected to the main track of the railroad company. The switch point was just to the west of a private road across the railroad right-of-way leading to the potato company's plant.

On the night in question a milk car was to be placed on a spot between the end of the spur track and the partially loaded car. This maneuver had to be accomplished by moving the partially loaded car along the spur track to the main line, leaving it there while the milk car was properly placed, and then returning the partially loaded car to its original location.

The train bringing the milk car arrived at the potato company plant about 1:00 a. m. The locomotive entered the spur track after being uncoupled from the train on the main track and leaving the carload of milk on the 'pocket track,' just west of the private road crossing. During this movement on the spur track, the engine picked up six cars, the last one being the partially loaded car. At that time the Railroad Company's train crew determined that the cars should be moved just off the spur track, to result in the partially loaded car blocking the private road crossing.

Both ends of the partially loaded car (3/4 full) contained fairly high stacks of cartons of the dehydrated potato, which by their nature were unusually subject to shifting and upsetting. The center of the car was free of cartons, but contained several metal sawhorses, used in conjunction with loading conveyors. Although the car had been in this condition for an hour and a half before it was hooked on to the locomotive, nothing had been done to brace the stacked cartons or to remove the metal sawhorses.

When the train arrived, Adams and his co-workers, with the knowledge of the train crew, entered the partially loaded car. Two men at each end held sheets of cardboard against the stacks of cartons to prevent them from falling. Thereafter the train crew proceeded with the train movement. At the time the train stopped at the crossing a jerking movement caused the stacked cartons on the top of a stack to shift so far forward that they appeared about to fall. The men in the car, with the assistance of the train conductor unsuccessfully tried to straighten the stack. At about the time it appeared impossible for the men to shift the load back to its original position with their own efforts, the lights of a vehicle were seen approaching on the private roadway, which was blocked by the partially loaded car. The witnesses disagree as to whether the car was moved forward to clear the roadway for the oncoming vehicle, or to 'jerk back' the load; but it is undisputed that soon after the first stop, the train again moved to the east so that the partially loaded car was clear of the crossing. 3 As the train moved from the private road crossing and again stopped, the unstable load toppled over, and respondent Adams was injured when he ran into one of the metal sawhorses while attempting to avoid the falling cartons. His injury was compensable under the workmen's compensation law, and respondents paid him compensation and medical expenses on his behalf, totalling some $3,899.00. The respondents brought this action for the recovery of this sum.

Shortly after sustaining his injuries, Adams brought a negligence action against the railroad company to recover damages for the injuries he received. That action was settled by agreement of Adams and the Railroad Company, Adams receiving $17,500. Also as a part of the settlement the Railroad Company agreed to indemnify Adams against any claims interposed by his employer or its surety for reimbursement of sums paid under the workmen's compensation law.

The Railroad Company assigns as error the trial court's finding that it was liable for reimbursement of the sum paid Adams under the workmen's compensation law. It asserts that the Potato Company was itself guilty of concurrent negligence which contributed to the injury of Adams and hence should not be allowed to be reimbursed for its own wrong. Respondents, however, contend that under the pretrial order, appellants cannot now question the determination of liability. Respondents also assert that I.C. § 72-102 withdraws from any workmen's compensation proceeding the issue of negligence on either the part of the employer or employee. Continuing, they contend I.C. § 72-204, regarding the liability of third persons under the compensation law, is a part of that law and should be construed in connection with the stated purpose of I.C. § 72-102, citing Lake v. State, 71 Idaho 107, 227 P.2d 361 (1951), for the proposition that, 'The right of the employer to recover against a third party is a statutory right and would not exist except for the provisions of Workmen's Compensation Law.' The Railroad Company is correct in its contention that the Potato Company's concurrent negligence contributed to Adams' injuries. The trial court found that both the Railroad Company and the Potato Company were negligent, which negligence concurrently contributed to the injury of Adams. The court found the Railroad Company negligent in moving the car involved while the Potato Company employees were in it, in violation of rules and customs of the railroad company, and in moving the car following the first stop, knowing of the dangerous condition of the partially loaded car; and found the Potato Company negligent in requiring its employees to remain in the railroad car during the switching and other movements of such car. This finding is fully sustained by the evidence.

The question thus presented is whether an employer whose negligence along with the negligence of a third person, concurrently contributed to the injury of an employee may seek reimbursement from such employee who has recovered sums for his injuries from the third party. 4

This court has never determined this question. However, in the case of Brown v. Arrington Const. Co., 74 Idaho 338, 262 P.2d 789 (1953), while the majority of the court declined to consider the issue, it was discussed in a dissenting opinion by Justice Taylor, as follows:

'However, since it clearly appears that there was negligence on the part of the county in matters over which it had control, which contributed to the injury, and without which the injury would not have occurred, and such negligence, being independent of and not imputed to the county because of any alleged contributory negligence on the part of Brown, and which negligence on the part of the county was also independent of any negligence on the part of Skinner, neither Brown, his employer, nor its insurance carrier, is entitled to recover the amount of the compensation award. In order words, where independent negligence on the part of the employer contributes to, or combines with, the negligence of the defendant to cause the injury, and where the employer and the third party defendant are not joint tort-feasors, but are severally liable as independent tort-feasors, and the negligence of the employer is not merely such as is imputed to him for negligence of the injured employee, the employer's negligence is a pro tanto defense available to the third party. The case of Essick v. City of Lexington, 232 N.C. 200, 60 S.E.2d 106, and Id., 233 N.C. 600, 65 S.E.2d 220, is in point on both law and facts. The reasoning underlying the rule, and which expresses the...

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