Louisville & N. R. Co. v. Harris Transfer Co.

• Decision Date: 12 September 1974
• Parties: LOUISVILLE & NASHVILLE RAILROAD COMPANY, a corp. v. HARRIS TRANSFER COMPANY, a corp. SC 312.
• Court: Alabama Supreme Court

Page 378

300 So.2d 378

293 Ala. 121

LOUISVILLE & NASHVILLE RAILROAD COMPANY, a corp. v. HARRIS TRANSFER COMPANY, a corp.

SC 312.

Supreme Court of Alabama.

Sept. 12, 1974.

Lawrence B. Clark, Birmingham, for appellant.

William C. Wood, Jr., Birmingham, for appellee.

BLOODWORTH, Justice.

The facts and issues raised on this appeal are well stated in the dissenting opinion to which we refer the reader for an understanding thereof.

At the outset it should be noted that those who concur in the majority opinion agree with the dissenting opinion to the extent that we hold that all the assignments of error are related and that arguing them together does not preclude consideration of one assignment, even though others may be without merit.

As to the merits, on this appeal, we affirm the trial court which held the railroad (L&N) is not entitled to indemnity from the industry (Harris Transfer) for the alleged injuries to the railroad's employee (under FELA) suffered as a result of being pinned between an oversized boxcar and the industry's building where the clearance between the building and centerline of the spur track was less than eight feet, the required clearance in the side-track agreement.

By the terms of paragraph 12 of the side-track agreement, the industry agreed it would not construct, place or permit structures within eight feet of the centerline of the track. At the place where the employee alleges to have been injured, the clearance is less than eight feet.

By the terms of paragraph 14 of the side-track agreement, the railroad assumed all liability for injuries to its employees unless the injury resulted directly or indirectly from the industry's breach of the provision in paragraph 12 concerning clearances.

Thus, the determinative issue is whether or not the industry breached its agreement not to construct, place, or permit any structure within eight feet of the centerline of the spur track.

The trial court found, inter alia, that the railroad itself built the side track with less than the required clearance between the centerline of the track and the warehouse which was constructed before the track was laid.

This Court has long been committed to the rule that when a chancellor hears evidence ore tenus (as the chancellor did here) his findings of fact have the weight of a jury verdict and will not be disturbed on appeal unless plainly erroneous or manifestly unjust and there is no credible evidence to support his findings. Morris v. Morris, 290 Ala. 41, 273 So.2d 203 (1973). We cannot say the chancellor's findings were plainly erroneous or manifestly unjust. To the contrary, these findings, in our judgment, are supported by credible evidence.

We consider that the following evidence supports the chancellor's findings:

(1) The letter of February 8, 1929, from the industry's attorney to the industry which contains a legal opinion concerning the 'proposed contract' . . . which speaks of 'force you to execute the agreement' . . . 'compel the Railroad . . . to build and operate the spur track' . . . 'terms of the contract must be agreed upon between you' . . . 'it can agree to construct it' . . . all of which looks to the future execution of the contract. We think that the letter permits the inference that the contract had not been signed by February 8;

(2) The letter of February 13, 1929, from the railroad's assistant superintendent to the industry implies, according to our view, not that 'the work of surveying, setting out stakes,' etc. had already been done and that the contract had been executed, but rather that the railroad assistant superintendent had not yet commenced to do anything towards constructing the track, the physical fact at issue. The letter specifically states 'advise when you desire this work started.';

(3) The ledger sheets clearly admit of the interpretation that the track was constructed subsequent to the building;

(4) The Internal Revenue Service Audit clearly implies that the track was constructed subsequent to the building since the federal government allowed only six months depreciation for the spur track but allowed seven and one-half months for the warehouse building;

(5) The direct testimony by witness Edwards who worked for the industry at that time and who testified in part, as follows:

'Q. Were you employed by the Harris Transfer Company at the time they moved into that building in 1929?

'A. Yes, sir.

'Q. Were you involved in the transfer of goods from the previous place of business of the Harris Transfer Company into the new warehouse?

'A. I was.

'Q. Was that sometime during the summer of 1929?

'A. We started moving the first part of June.

'Q. I see.

'THE COURT: 1929?

'THE WITNESS: Right.

'THE COURT: All right.

'Q. (By MR. WOOD:) Do you remember when the railroad siding behind that building was constructed relative to the date that you were moving in, or that Harris was moving in?

'A. It was while we were moving in.

'Q. Do you remember the construction of the railroad siding behind the building during the time that you were moving in?

'A. Yes, sir.

'Q. Is there anything in particular that points this fact out this many years ago in your mind?

'A. Well, most of them in here are not old enough to remember, but back in those days they had, the gang had one colored man who chanted a tune and the men worked in unison with his chant, and that just sticks in my mind. I don't think I will ever forget that.

'Q. I see. So, it is your testimony that Harris Transfer Company building which is adjacent to the spur track Was completed before the spur track was constructed?

'A. Yes, sir.

'Q. And this is the building that is immediately adjacent to that spur track?

'A. Right.'

(Our emphasis.)

When one considers this direct testimony (which is uncontroverted), along with the other indirect testimony, it seems to us, one has to conclude there was credible evidence to support the trial judge's findings of fact.

It is thus that we must conclude to affirm the trial court.

Affirmed.

HEFLIN, C.J., and MERRILL, HARWOOD, MADDOX and JONES, JJ., concur.

COLEMAN, McCALL and FAULKNER, JJ., dissent.

COLEMAN, Justice (dissenting):

A party to a suit for declaratory relief appeals from an adverse decree declaring that appellant is not entitled to indemnity from appellee under a contract, and declaring further that appellant owes a duty to indemnify appellee.

Appellant is Louisville & Nashville Railroad Company, a corporation, and will be referred to as L & N.

Appellee is Harris Transfer Company, a corporation, and will be referred to as Harris.

On May 19, 1972, Harris filed its bill of complaint against L & N, and also Eddie Walton who has been served with citation of appeal but has filed no brief. Walton is indifferent to the issue of indemnity which is between Harris and L & N.

Harris avers that on, to wit, January 30, 1929, Harris executed with L & N a certain contract which is sometimes called a side track agreement; that the agreement provided for the construction, operation, and use of a spur or side track on the premises of Harris' place of business in Birmingham. A copy of the agreement is made an exhibit to the bill.

Harris further avers that on October 1, 1971, Walton, an employee of L & N, filed suit against L & N for damages for personal injury resulting from an occurrence on September 17, 1971, in which Walton was struck by a boxcar on the premises of Harris; and that L & N has demanded that Harris defend, indemnify, and hold harmless L & N in said lawsuit by Walton, said demand being based on the provisions of the side track agreement.

Harris avers that L & N claims that the injuries of Walton were caused by a violation of Paragraph (12) of said agreement and that, under said agreement, Harris has a duty to indemnify L & N; but Harris denies that the allegations of Walton's complaint create any liability against Harris or set out facts showing a breach of Harris' duties under said Paragraph (12).

Harris avers that, under Paragraph (14) of the agreement, it appears that L & N is the only party liable to Walton.

Harris prays that the court declare that Harris owes no duty to indemnify L & N.

Subsequently, Harris amended its complaint by adding averments that on September 13, 1972, Walton filed suit against Harris for damages for Walton's injuries sustained as aforesaid. Harris amended its prayer by asking that the court also declare that L & N owes a duty to defend, indemnify, and hold harmless the complainant, Harris, in said suits by Walton.

L & N answered the bill and denied that Paragraph (14) of the agreement is controlling and says that Harris has the duty to defend, indemnify, and hold harmless L & N against the claim made by Walton.

The side track agreement designates L & N as first party and Harris as second party. Paragraphs (12) and (14) recite as follows:

'(12) Second party agrees that it will not construct any overhead structure lower than 22 feet above the top of the rail of said track, or any structure within eight feet from center line of said track, and that it will not place or permit any structures or obstructions, of either a permanent or temporary nature, on said track, or within the limits of the horizontal and vertical clearances above provided; And further agrees that it will indemnify and save harmless the first party against and from any and all claims for loss of or damage to property or injury to person caused directly or indirectly by the existence, location or condition of any structures or obstructions of any kind on the premises of second party, or by any structures or obstructions, of either a permanent or temporary nature, on said track, or Within the limits of the clearances above provided. Knowledge of or notice to The first party of the existence, location or condition Of any structures or obstructions Of any kind on the premises of the second party, and its continued operation of the track thereafter, Shall not be a...