New York Cent. R. Co. v. Wm. Culkeen & Sons Co.

• Decision Date: 23 May 1924
• Citation: 249 Mass. 71,144 N.E. 96
• Parties: NEW YORK CENT. R. CO. v. WM. CULKEEN & SONS CO., et al.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

249 Mass. 71

144 N.E. 96

NEW YORK CENT. R. CO.

v.WM. CULKEEN & SONS CO., et al.

Supreme Judicial Court of Massachusetts, Suffolk.

May 23, 1924.

Appeal from Superior Court, Suffolk County; John D. McLaughlin, Judge.

Suit in equity by the New York Central Railroad Company to restrain William Culkeen & Sons Company and others from further prosecuting pending action at law against plaintiff. Decree for defendants, and plaintiff appeals. Affirmed.

W. L. Parsons, of Boston, for plaintiff.

R. Homans, of Boston, and F. Adams, of Cambridge, for defendant National Dock & Storage Warehouse Co.

M. L. Brown, of Boston, for defendant Wm. Culkeen & Sons Co.

RUGG, C. J.

This is a suit in equity wherein the plaintiff seeks to restrain the defendant William Culkeen & Sons Company (hereinafter called Culkeen) from further prosecuting a pending action at law against the plaintiff. It is alleged in the bill that the plaintiff has been sued by Culkeen for causing loss by fire of Culkeen's personal property situated in a building let to Culkeen by the National Dock & Storage Warehouse Company (hereafter called the Warehouse Company), who is joined as a defendant. The declaration in the action of Culkeen against the plaintiff contains two counts, one basing claim for loss under G. L. c. 160, § 234, on fire communicated from the plaintiff's locomotive engine, and the other on the negligence of the plaintiff in placing a car on fire on a siding adjacent to the building where was stored personal property of Culkeen, and thus causing it to burn. The bill avers that the plaintiff is informed and believes that Culkeen has evidence in support of the allegations of each count in its declaration. The facts alleged in the bill as foundation for equitable relief are that the property thus damaged by fire was in a shed occupied by Culkeen under a lease from the Warehouse Company which contained a covenant ‘that all merchandise furniture and property of every kind which may be on the premises during the continuance of this lease shall be at his [Culkeen's] sole risk and hazard and that if the whole or any part thereof shall be destroyed or damaged by fire * * * no part of said loss or damage shall be charged to or borne by the Lessor [Warehouse Company] in any case whatever’; that the side track adjacent to the shed thus leased to Culkeen by the Warehouse Company formed a part of a somewhat elaborate system of side tracks belonging to the Warehouse Company and serving premises occupied by it and its tenants, including Culkeen; that the plaintiff operates cars and engines over this system of side tracks under the provisions of a sealed instrument executed by the Warehouse Company under the description ‘grantor,’ wherein is a recital that it has requested the plaintiff, therein named ‘the Railroad Company,’ to operate the system of side tracks over its land, and wherein among others are these covenants:

‘The grantor further covenants that it will indemnify and save harmless the Railroad Company for and from any and all claims, suits, expenses and losses, which it may suffer or be subject to, arising from injury or damage to any property or injury to or death of any persons, caused wholly or in part by or in any way referable to the movement or operation for the grantor within, upon or across any public or private way or traveled place of any engine, car or train on the said side tracks, or arising from derailments of rolling stock in the operation of said side tracks, excepting only such derailments as are caused solely by the negligence of the Railroad Company, its agents or servants. The grantor further covenants that the grantor will assume all responsiblility for and will save harmless the Railroad Company and the Boston & Albany Railroad Company and its lessors, from any claim or expense arising out of any damage to any property, real or personal, upon said side tracks or said land of said grantor, or upon any adjacent land owned or occupied by said grantor or its lessees or licensees, other than the rolling stock of any railroad company or freight or merchandise therein not destined for or shipped by the grantor or its lessees or licensees, caused by fire, whether communicated directly or indirectly by or from locomotive engines on the road now operated by the Railroad Company or otherwise.’

It further is alleged in the bill that the plaintiff has vouched the Warehouse Company in under its covenant just quoted to defend the Culkeen action against the plaintiff, but that the Warehouse Company has refused to do so and denied any obligation in that regard.

The ground for equitable relief is alleged to be that, if Culkeen in its action against the plaintiff shall recover judgment, the plaintiff will bring action against the Warehouse Company on the said quoted covenant, and that the plaintiff believes that, on its recovery against the Warehouse Company on said covenant, the Warehouse Company will bring action against Culkeen for reimbursement for such judgment under the covenant in its lease to Culkeen and that the final result of permitting Culkeen to proceed with its action against the plaintiff will be three actions in which no one of the parties involved in the controversy will be benefitted but all will be put to needless trouble and expense.

Each defendant demurred on the ground that the facts set forth in the bill do not entitle the plaintiff to relief in equity. The demurrers were sustained and a final decree entered dismissing the bill. The plaintiff's appeal requires determination of the questions of law thus raised.

The covenant by the Warehouse Company to indemnify the plaintiff is broad enough to include damages which may be recovered under either or both counts in the declaration of Culkeen against the plaintiff. The operation of cars upon the side track system of the Warehouse Company by the plaintiff was no part of its duty as a common carrier. In undertaking that service under its contract with the Warehouse Company, it was acting in a private capacity. The covenant of exoneration of liability from fire is absolute and unequivocal in terms. While it does not in express words include communication of fire by negligence of the plaintiff or its servants, by fair and necessary implication that kind of indemnity is within the scope of the covenant. There is no absolute liability on the part of a railroad for the communication of fire except from its locomtives. That liability is created by statute and has no relation to negligence. New England Box Co. v. New York Central & Hudson River Railroad, 210 Mass. 465, 97 N. E. 140;Duggan v. Bay State Street Railway, 230 Mass. 370, 382, 119 N. E. 757, L. R. A. 1918E, 680. The covenant in the case at bar includes damage by fire directly or indirectly communicated by locomotive engines ‘or otherwise.’ No fire communicated otherwise than from locomotives engines, for which the plaintiff would be liable, can readily be conceived except such as might arise from its negligence. Moreover, the express exemption in the preceding covenant of indemnity by the Warehouse Company in the same instrument against damages arising from the plaintiff's negligence has a strong tendency to show that in the following covenants indemnity against damages arising from negligence was included. Bates v. Old Colony Railroad, 147 Mass. 255, 17 N. E. 633;Hosmer v. Old Colony Railroad, 156 Mass. 506, 31 N. E. 652;Boston & Maine Railroad v. T. Stuart & Son Co., 236 Mass. 98, 104, 127 N. E. 532.

[3] The covenant thus construed is valid and binding. It contravenes no rule of public policy. Porter v. New York, New Haven & Hartford Railroad, 205 Mass. 590, 91 N. E. 875;Hartford Fire Ins. Co. v. Chicago, Milwaukee & St. Paul Railway Co., 175 U. S. 91, 20 Sup. Ct. 33, 44 L. Ed. 84;Santa Fe Railway v. Grant Bros. Construction Co., 228 U. S. 177, 33 Sup. Ct. 474, 57 L. Ed. 787. Such a covenant exonerating a railroad company from liability for its negligence in operating cars over a private side track stands on a quite...