Paro v. Pennsylvania R. Co., 30692

• Decision Date: 18 July 1961
• Docket Number: No. 30692,30692
• Citation: 348 S.W.2d 613
• Court: Missouri Court of Appeals
• Parties: Harold PARO, Plaintiff, v. PENNSYLVANIA RAILROAD CO., a Corporation, Defendant-Third Party Plaintiff, v. SIMPSON EXPRESS & TRANSFER, INC., a Corporation, Third Party Defendant, Additional Third Party Plaintiff, Respondent, v. STEFFEN TRANSFER COMPANY, a Corporation, Additional Third Party Defendant, Appellant.

Page 613

348 S.W.2d 613

Harold PARO, Plaintiff, v. PENNSYLVANIA RAILROAD CO., a Corporation, Defendant-Third

Party Plaintiff, v. SIMPSON EXPRESS & TRANSFER, INC., a Corporation, Third Party Defendant, Additional Third Party Plaintiff, Respondent, v. STEFFEN TRANSFER COMPANY, a Corporation, Additional Third

Party Defendant, Appellant.

No. 30692.

St. Louis Court of Appeals, Missouri.

July 18, 1961.

Motion for Rehearing or for Transfer to Supreme Court Denied

Sept. 5, 1961.

Austin Knetzger, Hartman, Guilfoil & Albrecht, E. C. Albrecht, Jr., James L. Homire, Jr., St. Louis, for appellant.

Moser, Marsalek, Carpenter, Cleary, Jaeckel & Hamilton, Morris E. Stokes, Joseph H. Mueller, St. Louis, for respondent.

DOERNER, Commissioner.

This appeal involves a claim for indemnity by Simpson Express & Transfer Company against the Steffen Transfer Company. For the sake of convenience the parties will be referred to as Simpson and Steffen. Trial below was before the court sitting without a jury, and resulted in a judgment for Simpson in the sum of $5,041.16, from which Steffen has appealed.

The essential facts are not in dispute. The Pennsylvania Railroad and Simpson had entered into a written contract whereby Simpson agreed to transport less-than-carload freight between stations of the Railroad and places of business of patrons of the Railroad at St. Louis, Missouri, and environs, and to handle such freight to and from trucks from and to the platform of the Railroad. That contract contained a provision by which Simpson agreed to indemnify the Pennsylvania Railroad, as follows:

'* * * (3) To be responsible for, and to protect, save harmless and indemnify Railroad from and against all fines, penalties, loss, damage, cost and expense suffered or sustained by Railroad or for which Railroad may be held or become liable by reason of (a) loss or destruction of or damage or delay to property and freight in the handling, collection or delivery thereof hereunder, or loss or destruction of or damage or delay to property and freight while said property or freight is in Trucker's care, custody or possession hereunder; (b) injury (including death) to persons or property, or other causes whatsoever, in the event an attempt should be made to hold Railroad liable therefore, in connection with Trucker's business or operations hereunder; (c) violation of any law, rule or regulation of public authority with respect to the services of Trucker hereunder; (d) the issuance of any false or fraudulent bills of lading or the giving or receiving of any false or fraudulent receipts for any freight by Trucker, or by Trucker's agents, servants or employes; (e) failure of Trucker to make collections and remittances to Railroad as provided in this agreement, and (f) theft, embezzlement, defalcation, misrepresentation, or falsification by any device whatsoever on the part of Trucker or Trucker's agents, servants or employes.'

Simpson, in turn, had entered into a written agreement with Steffen whereby Steffen agreed to load and transport outbound lessthan-carload freight from the premises of shippers to certain stations of Simpson or to Pennsylvania's station in East St. Louis, Illinois, '* * * and to unload such shipments at the said stations.' By its contract Steffen agreed to indemnify Simpson as follows:

'* * * 1.3 To be responsible for, and to protect, save harmless, and indemnify Simpson from and against any loss, damage, cost or expense which may be incurred by Simpson on account of: (A) injury to or death of persons, or loss, damage, or delay to property or freight caused by or resulting from the operations of drayman under this agreement: (B) the issuance of false or fraudulent bills of lading, or the giving or receiving of false or fraudulent receipts for freight by drayman or his employees: (C) failure of drayman to make collections and remittences to Simpson as provided in this agreement: and (D) theft, embezzlement, defalcation, misrepresentation or falsification on the part of drayman or his employees.'

Harold Paro, the original plaintiff in this action, was a truck driver for Steffen. Called as a witness by Simpson, he testified that on February 29, 1956 he picked up a shipment of three large crates of wire, each weighing about 1400 pounds, from Ludlow Saylor Wire Cloth Company and drove to the freight platform of Pennsylvania Railroad in East St. Louis. An employee of the Railroad attempted to remove the first crate from the truck by picking it up with a lift-truck, but the crate tilted as it was raised because the blades were too short. According to Paro, he told the employee to either get longer blades for the lift-truck or to use a chain, but his advice was rejected. While Paro and the operator of the lift-truck were standing alongside of Paro's truck, another Pennsylvania employee backed up the lift-truck, causing the tilted crate to slide off of the truck and hit Paro. After Paro had instituted his action against the Pennsylvania for the injuries he had sustained, the Railroad filed a third-party petition against Simpson. Simpson agreed with the Pennsylvania to assume the defense of Paro's suit against the Railroad, and, in turn, called upon Steffen to take over the defense of the suit. Steffen refused to do so, and Simpson, as additional third party plaintiff, then filed its third party petition against Steffen. Thereafter Simpson effected a settlement of Paro's action against the Pennsylvania Railroad for $4200, and expended the further sums of $91.67 for court costs, and $750 for attorney's fees, or a total of $5,041.67.

In its memorandum opinion the trial court found that Paro's claim for injuries resulted from the negligent acts and conduct of the Railroad's employees who were engaged in unloading Steffen's truck; that Paro's claim against the Pennsylvania 'originated from Steffen's operations'; that 'Simpson was required to respond (to the Railroad) upon its contractural responsibility'; and that Steffen was liable to Simpson for the payment made and expenses incurred by Simpson in the settlement of Paro's suit.

Steffen contends that the court erred in rendering the judgment in favor of Simpson, and in overruling Steffen's motion to set the judgment aside, because Simpson failed to prove a claim upon which relief could be granted. Whild variously stated, the fundamental basis of its contention is that under the Simpson-Pennsylvania contract, Simpson was under no duty to indemnify the Pennsylvania against the...