Seaboard Coast Line R. Co. v. Freight Delivery Service, Inc.

• Decision Date: 21 October 1974
• Docket Number: No. 49765,No. 2,49765,2
• Citation: 210 S.E.2d 42,133 Ga.App. 92
• Parties: SEABOARD COAST LINE RAILROAD COMPANY v. FREIGHT DELIVERY SERVICE, INC
• Court: Georgia Court of Appeals

Page 42

210 S.E.2d 42

133 Ga.App. 92

SEABOARD COAST LINE RAILROAD COMPANY v. FREIGHT DELIVERY SERVICE, INC.

No. 49765.

Court of Appeals of Georgia, Division No. 2.

Oct. 21, 1974.

Troutman, Sanders, Lockerman & Ashmore, Mark S. Kaufman, Ezra H. Cohen, Atlanta, for appellant.

Long, Weinberg, Ansley & Wheeler, Arnold Wright, Jr., F. Clay Bush, Atlanta, for appellee.

Syllabus Opinion by the Court

EBERHARDT, Presiding Judge.

Seaboard entered into a drayage contract with Freight Delivery wherein the latter agreed to perform certain hauling, removing and loading of trailers (piggyback) as they came into Seaboard's rail yard. It was in the performance of such service on October 8, 1968 that a trailer, loaded with beef hanging from the ceiling, was being moved within the yard by one of Freight Delivery's drivers by one of its tractors, at the request of Seaboard. The trailer tires went into a ditch causing the load to swing, and the trailer overturned damaging both the trailer and the freight, both of which were owned by Seaboard.

Pertinent provisions of the drayage contract between Seaboard and Freight Delivery are: '5. Liability Provisions: (a) The Contractor will indemnify and save harmless the Railroad from and against all loss, damages, costs and expenses, including attorneys' fees, claims, demands and causes of action on account of (i) injury to or death of all persons and loss of or damage to property caused by or resulting in any manner from any acts or omissions, negligent or otherwise, of the Contractor . . . in performing . . . any of the services or duties on the part of the Contractor to be performed under this contract . . . The Contractor's liability for freight handled hereunder, while such freight is in the possession of the Contractor, shall be that of an insurer.'

At the trial before a jury Seaboard sought damages for both the trailer and the freight and proceeded on two theories, both of which are controlled by the above-quoted portion of the contract: (1) as to the freight loss, Freight Delivery was absolutely liable as an 'insurer' or at least had an extraordinary degree of care as though a common carrier; (2) as to the trailer damage, Freight Delivery was liable for its 'acts or omissions, negligent or otherwise.'

At the close of the evidence, Seaboard moved for a directed verdict as to the freight loss, but it was denied. Freight Delivery moved for a directed verdict generally as to the whole case, and it was granted.

Seaboard had also joined as a party defendant to the action Associated Indemnity Corporation which had issued an indemnity policy to Freight Delivery as required by the contract for Seaboard's protection. The trial court dismissed the claim against Indemnity as being premature. Held:

1. Seaboard's motion for directed verdict as to the freight loss should not have been granted. "Except in cases prohibited by statute, or where a public duty is owed, as by a common carrier of goods or passengers, a party may by a valid contract relieve himself from liability to the other party for particular injuries or damages and for ordinary negligence, and such an agreement is not void as against public policy. Hearn v. Central of Ga. R. Co., 22 Ga.App. 1, 3-7, 95 S.E. 368; Dowman-Dozier Mfg. Co. v. Central of Ga. R. Co., 29 Ga.App. 187, 114 S.E. 815.' King v. Smith, 47 Ga.App. 360, 364(2), 170 S.E. 546, 548.' Batson-Cook Co. v. Georgia Marble, etc., Co., 112 Ga.App. 226, 229, 144 S.E.2d 547. Georgia L.1970, p. 441 can have no effect upon the situation here for that Act operates in futuro only. Robert & Company Associates v. Pinkerton & Laws Co., 124 Ga.App. 309, 183 S.E.2d 628.

The evidence clearly shows that Freight Delivery, through its driver, had possession of the freight at the time of the accident. The phrase 'in the possession of the contractor' would be meaningless if it did not apply to this situation.

However, we do not believe the word 'insurer' in the same sentence as used to describe Freight Delivery's liability to Seaboard for freight loss can be construed to impose absolute liability to include even Seaboard's own negligence. Neither that sentence, nor the remainder of the language in the contract pertaining to freight loss, meets the test of Batson-Cook, supra, that for an indemnification clause to include the negligence of the indemnitee it must be 'expressed plainly, clearly, and unequivocally, in sufficient specific words . . .' There are cases involving contracts whose language leave no doubt that the intention of the parties therein was to include in the indemnification clause the indemnitee's own negligence. See Robert & Co. Associates v. Pinkerton & Laws Co., 120 Ga.App. 29, 169 S.E.2d 360; Gough v. Lessley, 119 Ga.App. 275, 166 S.E.2d 893; Kraft Foods v. Disheroon, 118 Ga.App. 632, 165 S.E.2d 189; Dowman-Dozier Mfg. Co. v. Central of Ga. R. Co., 29 Ga.App. 187, 114 S.E. 815, supra. And there are other cases involving indemnity clauses more explicit than the mere word 'insurer' wherein the clause was not found to include the indemnitee's negligence. Massee & Felton Lumber Co. v. Georgia & Florida R., 143 Ga. 173, 84 S.E. 468; Scarboro Enterprises, Inc. v. Hirsh, 119 Ga.App. 866, 169 S.E.2d 182; Batson-Cook Co. v. Georgia Marble Setting Co., 112 Ga.App. 226, 144 S.E.2d 547, supra; Bohannon v. Southern R. Co., 97 Ga.App. 849, 104 S.E.2d 603.

Seaboard nevertheless contends that the word 'insurer' at least imposes the duties of a common carrier on Freight Delivery as to the freight loss. Seaboard does not contend that Freight Delivery was an common carrier (Code § 18-101; Fish v. Chapman & Ross, 2 Ga. 349; McIntyre v. Harrison, 172 Ga. 65, 157 S.E. 499), only that it 'contractually assumed the duties of a common carrier.' Conceding that Freight Delivery is a private motor carrier, the question becomes what was the intent of the parties as to Freight Delivery's duty of care for freight losses. The parties to a contract may establish by its terms any subject matter in which they have an interest so long as it is not prohibited by statute or public policy. Brown v. Five Points Parking Center, 121 Ga.App. 819, 821, 175 S.E.2d 901, and this rule applies to the standard of care owed by each party to the contract so long as it does not affect duties owed to third parties or the public. See e.g. State Construction Co. v. Johnson, 88 Ga.App. 651(3), 77 S.E.2d 240; 17 C.J.S. Contracts § 262 (1955). It is clear that the parties intended that Freight Delivery's duty of care would be more than ordinary, otherwise the sentence would be meaningless. "Under the rules governing the construction of contracts all provisions contained therein are presumed to be inserted with a purpose, and are to be given some meaning. A contract, unless its terms necessarily require it, will not be so construed as to render useless and meaningless a particular provision in the contract.' Aetna Ins. Co. v. Martin, 64 Ga.App. 789, 794, 14 S.E.2d 161.' Harper v. Phoenix Ins. Co. of Hartford, 106 Ga.App. 424, 426, 126 S.E.2d 916, 917. We think it is...