Molly Pitcher Canning Co. v. Central of Georgia Ry. Co., s. 56693

• Decision Date: 03 April 1979
• Docket Number: 56694,Nos. 56693,s. 56693
• Citation: 149 Ga.App. 5,253 S.E.2d 392
• Parties: MOLLY PITCHER CANNING COMPANY v. CENTRAL OF GEORGIA RAILWAY COMPANY et al. CENTRAL OF GEORGIA RAILWAY COMPANY v. MOLLY PITCHER CANNING COMPANY.
• Court: Georgia Court of Appeals

Page 392

253 S.E.2d 392

149 Ga.App. 5

MOLLY PITCHER CANNING COMPANY v. CENTRAL OF GEORGIA RAILWAY COMPANY et al.

CENTRAL OF GEORGIA RAILWAY COMPANY v. MOLLY PITCHER CANNING COMPANY.

Nos. 56693, 56694.

Court of Appeals of Georgia.

Argued Oct. 10, 1978.

Decided Jan. 15, 1979.

Rehearing Denied Feb. 9, 1979.

Certiorari Denied April 3, 1979.

Hicks, Maloof & Campbell, Robert E. Hicks, Charles E. Campbell, Atlanta, Charles R. Adams, Jr., Fort Valley, for appellant.

Greene, Buckley, DeRieux & Jones, Burt DeRieux, Gregory J. Digel, Atlanta, Robert E. Lanyon, Fort Valley, for appellees.

BIRDSONG, Judge.

Molly Pitcher Canning Co. ("Molly Pitcher") brought suit against Southern Railway Co. ("Southern") and Central of Georgia Railway Co. ("Central") seeking the recovery of damages resulting from a collision between Central's train and Molly Pitcher's plant and equipment. At the close of the plaintiff's evidence, the trial court directed a verdict for Southern. From a favorable jury verdict and the entry of judgment thereon, Molly Pitcher appeals. In a cross appeal, Central appeals from the denial of its motions for directed verdict and judgment nov. Held :

1. After a jury's verdict is approved by the trial court, ". . . the evidence must be construed so as to uphold the verdict even where there are discrepancies. (Cits.)" Smith v. Hornbuckle, 140 Ga.App. 871, 876, 232 S.E.2d 149, 154. Construing the evidence in accordance with this rule, the record and transcript reveal that Molly Pitcher was a corporation engaged in the business of processing and canning freestone peaches and tomatoes, and conducted these operations in a plant adjacent to three railroad spurs owned by Central. These spur tracks were connected by a switch to a single lead track which in turn connected with Central's main line between Fort Valley and Albany, Georgia. On July 28, 1969, Molly Pitcher and Central entered into a licensing agreement (hereafter referred to as "licensing agreement") which granted Molly Pitcher the right to occupy and use a parcel of Central's right of way together with the right to construct and maintain upon said premises a portion of a building. Thereafter, on April 13, 1970, Molly Pitcher and Central entered into a lease agreement (hereafter referred to as "lease agreement") pursuant to which Central leased to Molly Pitcher a portion of the spur track adjacent to Molly Pitcher's plant, for the purpose of storing railroad cars. Both the licensing agreement and the lease agreement contained "hold harmless" or indemnification provisions which purported to indemnify Central against certain damages arising from the use of the spur tracks. The licensing agreement provided:

"Since the use by Licensee of property of Company hereunder may create fire or other risks which would not accrue except for such use, and Company would not permit such use except upon the condition that it shall be protected against such risks, Licensee covenants hereby (if a corporation, with warranty of its authority so to do) to hold Company or any other corporation controlling controlled by or under common control with Company harmless from death, personal injury or property damage accruing or sustained from any act, negligence or default of Licensee, or agents or employees of Licensee, in or in connection with the exercise of the privileges hereby granted, or which may be attributable thereto, or to the presence of any property of Licensee upon said premises of Company including specifically damage to such property from railroad operations, and whether or not negligence of Company or any other corporation controlling, controlled by or under common control with Company, its agents or employees, may have contributed to such injury or damage, except that Licensee shall not be held responsible for any loss of life, personal injury or damage to cars or property of Company, accruing from Company's negligence, without fault of Licensee, its agents or employees."

The lease agreement provided:

"Railroad shall have no liability for and Industry agrees to indemnify Railroad against the consequences of any loss of or damage to said cars and their contents placed on said leased track by or for account of Industry, or any loss of life, personal injury or property loss or damage suffered by reason of any act, negligence or default of Industry, its agents or employees, in or about or in connection with the use of said leased track and premises, or which may be attributable thereto, or to the presence of said cars or their contents on said leased track, except loss, injury or damage arising from the sole negligence of Railroad, its servants or employees."

The only damages sought by Molly Pitcher are those resulting from the destruction of its property, and the subsequent loss of business profits. The parties have stipulated that the collision which precipitated this litigation did not occur on property which was the subject of either the lease agreement or the license agreement.

2. Central's cross appeal is predicated solely on the effect of the indemnity provisions quoted above. Central argues that these provisions required Molly Pitcher to indemnify Central against all damages sought by Molly Pitcher in its suit against Central, or, alternatively stated, that the indemnification provisions constituted a complete defense to Molly Pitcher's claims.

(a) Preliminarily, we note the stipulation by the parties that the collision which is the subject matter of this litigation did not occur on property covered by either of the agreements in which the indemnity provisions are contained. In this regard, we are cognizant of the holding of the Supreme Court of Georgia in Southern R. Co. v. Ins. Co. of N. A., 228 Ga. 23, 183 S.E.2d 912, where the court concluded that an indemnification covenant similar to those herein at issue would encompass damages occurring in excess of 1,600 feet from the premises specifically described in the indemnification agreement, so long as the damages in fact accrued as a result of or in connection with the use or operation of the described premises. See Southern R. Co. v. Brunswick Pulp etc. Co., 376 F.Supp. 96, 99 (S.D.Ga.1974); Watson v. Southern R. Co., 420 F.Supp. 483 (D.C.S.C.1975).

Of determinative import is the scope of the indemnity provisions, which, manifested in the form of written contracts, is a question of law for the court. Interstate Life etc. Co. v. Brown, 141 Ga.App. 195, 233 S.E.2d 44. The rule is well established that contracts of indemnity ". . . are construed strictly and absent plain, clear and unequivocal language will not be interpreted to indemnify against acts attributable to the indemnitee's own negligence. (Cits.)" Binswanger Glass Co. v. Beers Const. Co., 141 Ga.App. 715, 717, 234 S.E.2d 363, 365.

Examining the indemnification covenants in light of these rules, the Lease agreement plainly exempts Molly Pitcher from liability for indemnification for damages such as those here at issue arising Solely as a result of Central's negligence. The Licensing agreement is somewhat less clear in its meaning, but the relevant portions provide that Molly Pitcher shall indemnify Central against damages sustained as a result of ". . . any act, negligence or default Of Licensee (Molly Pitcher) . . . and whether or not negligence of Company (Central) . . . may have Contributed to such damage . . ." (Emphasis supplied.) A careful reading of the indemnification provisions contained in the licensing agreement thus reveals the absence of the express and unequivocal language that is a condition precedent to the indemnification of an indemnitee against his sole negligence. Binswanger etc. Co. v. Beers Const. Co., supra; Scarboro Enterprises v. Hirsh, 119 Ga.App. 866, 869, 169 S.E.2d 182. We conclude therefore that the indemnification provisions upon which Southern relies as a defense to Molly Pitcher's suit do ". . . not preclude the plaintiff (Molly Pitcher) from seeking compensation for a property loss of the plaintiff caused Solely by the negligence of the defendant (Central)." (Emphasis supplied.) Bohannon v. Southern R. Co., 97 Ga.App. 849, 104 S.E.2d 603. See Seaboard C. L. R. Co. v. Union Camp Corp., 145 Ga.App. 417, 418, 243 S.E.2d 631. It follows that the trial court was correct in charging the jury as follows: ". . . if you find from the evidence that the Sole proximate cause of the plaintiff's damage, if any, was defendant railroad's negligence, if any, then in such an event it would be your duty to return a verdict in favor of the plaintiff . . ." (Emphasis supplied.)

( b) Questions of negligence and proximate cause are for the jury. Holcomb v. Ideal Concrete Products, 140 Ga.App. 857, 232 S.E.2d 272. The evidence authorized the jury to find that Central was on notice of the fact that Molly Pitcher's equipment was situated in such proximity to the tank track (the track immediately adjacent to Molly Pitcher's plant) that said track was impassable and the use thereof would inevitably result in a collision; that Central had stated to Molly Pitcher that it would no longer use the tank track; that Central negligently failed to examine the railroad switching device which should have diverted the railroad cars down the middle or spur track rather than the tank track; and that Central negligently backed a "cut" of railroad cars onto the impassable tank track. The jury was thus authorized to conclude that Central's negligence was the sole proximate cause of the damages sustained by Molly Pitcher as a result of the collision between Central's train and Molly Pitcher's plant and equipment, and therefore that Molly Pitcher was not barred from recovery against Central by virtue of the indemnification covenants. Accordingly, the trial court did not err in overruling Central's motions for directed verdict and judgment nov, and Central's enumerations of error are without merit.

3. Molly Pitcher's enumerated errors 3, 4, 5,...