Seaboard Coast Line R. Co. v. Dockery

• Decision Date: 14 July 1975
• Docket Number: No. 1,No. 50517,50517,1
• Citation: 218 S.E.2d 263,135 Ga.App. 540
• Parties: SEABOARD COAST LINE RAILROAD COMPANY v. George DOCKERY et al
• Court: Georgia Court of Appeals

Page 263

218 S.E.2d 263

135 Ga.App. 540

SEABOARD COAST LINE RAILROAD COMPANY v. George DOCKERY et al.

No. 50517.

Court of Appeals of Georgia, Division No. 1.

July 14, 1975.

Rehearing Denied July 31, 1975.

Jay, Garden & Sherrell, John Edward Smith, III, Fitzgerald, H. J. Quincey, Douglas, for appellant.

Farrar & Farrar, Arthur C. Farrar, Lee R. Williams, William V. Evans, Douglas, for appellees.

MARSHALL, Judge.

This is an appeal from the granting of a motion in favor of the appellee for judgment on the pleadings against the appellant with respect to the third-party complaint filed by the appellant against the appellee.

On April 25, 1973, R. B. White was killed in a collision involving a truck operated by White and a railroad train being operated by appellant, Seaboard Coast Line Railroad Company, hereinafter referred to as Seaboard. The collision occurred at the intersection of Vickers Street and the railroad track of Seaboard within the city limits of Ambrose in Coffee County, Georgia. At the northwestern corner of the intersection of Vickers Street and the track of Seaboard in Ambrose, there are certain premises which at the time of the collision were being leased by Seaboard to appellee, George Dockery, who traded as Ambrose Fertilizer Company.

Subsequently Helen N. White, widow of the deceased, filed an action in Coffee Superior Court against Seaboard and its engineer, Karl Younginer. Mrs. White's complaint alleged that as her husband approached the intersection, his view of the railroad track and the approaching train were obstructed by railroad tank cars and also by buildings and storage tanks situated near the railroad track and that the location of the tank cars, storage tanks and other buildings proximately caused the death of her husband. Seaboard and its engineer Younginer filed answers to the complaint in which they denied any liability to the plaintiff. Subsequently, Seaboard filed a third-party complaint against the third-party defendant Dockery, appellee, in which Seaboard alleged that on May 12, 1969, prior to the date of the collision, Seaboard and Dockery entered into a lease agreement covering the premises located at the intersection in question and further alleged that the lease agreement and the terms therein provided that Dockery, as lessee, was or might be liable to Seaboard for all or part of any recovery which plaintiff White might obtain against the railroad in the action. Pertinent paragraphs of the lease agreement referred to in the third-party complaint of Seaboard are, as follows:

Paragraph 8 of said lease agreement between the appellant and the appellee provides as follows:

'Lessee shall and does hereby assume and agree to indemnify and save harmless Lessor, its successors and assigns, from and against all loss, costs, expense, claims, suits and judgments, including attorneys fees, whatsoever in connection to injury to or death of any person or persons, or loss of or damage to property caused by or in any way connected with Lessee's use of the leased premises, whether such injury, death, loss, or damage results from any cause whatsoever; provided, however, that if any claim or liability other than from fire shall arise from the joint or concurring negligence of Lessor and Lessee it shall be borne by them equally . . .'

Paragraph 9 of the aforementioned lease between the appellant and the appellee provides as follows:

'(a) It is expressly understood and agreed that Lessee shall have the right and privilege of constructing, maintaining and using the structure listed below and shown in yellow on said attached print, adjacent to Lessor's northeasternmost track:

'(i) The eaves along the southwest side of a building commencing at the northwestern end of the premises described herein and extending southeastwardly 70 feet at a minimum clearance of 7.2 feet northeastwardly, measured at right angles from the center line of said northeasternmost track, at a height of 13 feet above the top of rail of said track.

'(b) Notwithstanding the provisions of Article 8 or any other provision hereof, by reason of the additional hazard created by said structure and in consideration of the Lessor agreeing, notwithstanding such hazard, to operate with its equipment and employees over said track, the Lessee shall and does hereby assume responsibility for and agrees to indemnify and hold harmless the Lessor, its successors and assigns, from and against all loss, costs and expenses, including attorneys' fees, claims, suits and judgments whatsoever in connection with injury to or death of any person or persons or loss or damage to property, including property of the Lessee, caused by or in any way connected with the installation, maintenance, use, operation or presence of said structure, or removal thereof, whether resulting from the operation of engines or cars on said track or from any cause whatsoever, and whether such injury, death, loss or damage results from negligence of Lessor, its agents or otherwise.'

The structure which was authorized by paragraph 9 of the lease was placed at the northwest corner of the intersection of Vickers Street and the track of Seaboard in Ambrose.

The case was pretried and subsequently appellee Dockery filed a motion for judgment on the pleadings against Seaboard as to the third-party complaint. The trial court granted Dockery's motion on January 10, 1975, and a certificate for immediate review was obtained.

The issue presented in this case is: Did the trial court err in granting Dockery's motion for judgment on the pleadings, when Dockery had been made a third-party defendant by Seaboard's third-party complaint on the basis of indemnity clauses in favor of Seaboard contained in the lease agreement? Held:

The trial court erred in granting appellee Dockery's motion for judgment on the pleadings and must be reversed.

Rule 12 of the Civil Practice Act, found in Code Ann. § 81A-112(c) provides the rule concerning the motion for judgment on the pleadings. This court held in Gulf American Fire and Casualty v. Harper, 117 Ga.App. 356(1), 160 S.E.2d 663: "After the pleadings are closed but within such time as not to delay the trial, any party may move for judgment on the pleadings.' Code Ann. § 81A-112(c). 'For the purposes of the motion, all well-pleaded material allegations of the opposing party's pleadings are to be taken as true, and all allegations of the moving party which have been denied are taken as false. Conclusions of law are not admitted. Judgment on the pleadings may be granted only if, on the facts as so admitted, the moving party is clearly entitled to judgment.' 2A Moore's Federal Practice 2269, § 12.15.' It is noted that appellee Dockery alleged in his motion for judgment on the pleadings that the third-party complaint filed by Seaboard failed to state a cause of action against Dockery. This contention is defective on its face, in that under the Civil Practice Act, 'A complaint is not required to set forth a cause of action, but need only set forth a claim for relief . . .' Mitchell v. Dickey, 226 Ga. 218, 220, 173 S.E.2d 695, 697. ". . . If, within the framework of the complaint, evidence may be introduced which will sustain a grant of relief to the plaintiff, the complaint is sufficient. " Ibid. Where the party moving for judgment on the pleadings does not introduce affidavits, depositions, or interrogatories in support of his motion, such...