Sol Walker & Co. v. Seaboard Coast Line R. Co.

• Decision Date: 26 July 1978
• Docket Number: No. 77-1487,77-1487
• Citation: 362 So.2d 45
• Court: Florida District Court of Appeals
• Parties: SOL WALKER & COMPANY, a Florida Corporation, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellee.

Page 45

362 So.2d 45

SOL WALKER & COMPANY, a Florida Corporation, Appellant, v. SEABOARD COAST LINE RAILROAD COMPANY, Appellee.

No. 77-1487.

District Court of Appeal of Florida, Second District.

July 26, 1978.

As Modified On Denial of Rehearing Sept. 1, 1978.

John R. Bush and Claude H. Tison, Jr. of Macfarlane, Ferguson, Allison & Kelly, Tampa, for appellant.

Ronald D. McCall of Fowler, White, Gillen, Boggs, Villareal & Banker, P.A., Tampa, for appellee.

GRIMES, Chief Judge.

This appeal involves complex questions of res judicata, indemnity and contribution.

Appellant (Walker) is a scrap iron dealer in Tampa. In order to ship scrap Walker maintains on its premises sidetracks which connect to the main line of appellee (Seaboard). The parties entered into a sidetrack agreement which contained a provision requiring Walker to indemnify Seaboard for liability incurred through Walker's negligence and providing that claims arising from the joint or concurring negligence of both parties would be borne by them equally.

Each day, as a matter of practice, Seaboard would deliver open gondola cars to Walker's scrap iron yard. Walker would load the cars and complete an "OC-1" form for each car which noted that the car had been loaded in good order and condition and was ready for shipping and handling. Seaboard picked up the cars each night. The Seaboard crew was required to inspect each loaded car and to refuse to move any car found to be improperly loaded.

On November 14, 1973, Seaboard picked up four cars loaded by Walker earlier that day. The cars were taken to another location and left overnight to await further handling in the morning. The following day another Seaboard crew transported the cars to a second yard where they were to be placed on tracks leading to their final destination. In the process of uncoupling one of the cars a "cut lever" failed to stay up in the release position, so that John Warder (Warder), a Seaboard switchman, had to run along side of the car and manually hold the lever up in order to uncouple the car when it was "kicked" forward by the thrust of the engine. As he was running with the car and holding the lever a heavy bale of scrap iron fell from the car and struck him on the leg and foot causing him severe injury.

Warder brought suit against Walker and Seaboard. Walker was alleged to have been negligent in loading the car, and Seaboard was alleged to have been negligent in failing to inspect the loaded car and in allowing it to be operated with a defective coupling mechanism. At the conclusion of the plaintiff's case, Walker obtained a directed verdict. Warder's case against Seaboard was submitted to the jury, and the jury returned a verdict against Seaboard in the sum of $106,000.

Thereafter, Seaboard filed a complaint against Walker for indemnity and contribution. The six-count complaint sought the following relief:

Count I indemnification upon allegations of Walker's active negligence and Seaboard's passive negligence;

Count II recovery for breach of contract on allegations that the OC-1 form constituted a warranty that Walker had loaded the car in good order and condition;

Count III indemnity under the sidetrack agreement;

Count IV contribution under the sidetrack agreement;

Count V contribution under the Uniform Contribution Among Tortfeasors Act;

Count VI indemnity and contribution upon allegations that Walker was guilty of willful and wanton misconduct.

After Seaboard presented its case, Walker moved for a directed verdict. The court granted a directed verdict on Counts I, V, and VI but permitted the remaining counts to go to the jury. The jury returned a verdict in favor of Seaboard for $58,587.72, an amount equal to one half of the sum of the Warder judgment and attorneys' fees. Walker now appeals this judgment, and Seaboard cross-appeals the order directing verdicts on Counts I, V, and VI.

The overriding issue on this appeal is whether the judgment exonerating Walker in the Warder action was res judicata so as to preclude the relitigation of Walker's responsibility in the case below. Before resolving this issue, however, we deem it advisable to first address several other questions.

Walker contends that Counts III and IV should not have been submitted to the jury because the indemnity provision upon which these counts were predicated was not applicable to the Warder accident. The pertinent provision of the sidetrack agreement reads as follows:

Shipper will indemnify and hold Railroad harmless for loss, damage or injury from any act or omission of Shipper, his employees or agents, to the person or property of the parties hereto and their employees, and to the person or property of any other person or corporation, while on or about the track, and if any claim or liability other than from fire shall arise from the joint or concurring negligence of both parties hereto, it shall be borne by them equally.

Walker asserts that this provision is wholly inapplicable because the accident occurred at a location far away from the sidetrack covered by the agreement.

The question is what do the words "while on or about the track" modify? If they modify the words "any act or omission of Shipper," then this provision would be applicable because Walker's alleged negligence occurred on the track even though the accident happened elsewhere. On the other hand, if the words modify "loss, damage or injury . . . to the person or property of the parties hereto and their employees and to the person or property of any other person or corporation," then the provision is inapplicable because Warder's injury took place several miles away. ¹

While this provision appears to be customarily used in railroad sidetrack agreements, there are no cases directly on point. The same question involving the same language was presented in Huck v. Chicago, St. Paul, Minneapolis and Omaha Ry. Co., 5 Wis.2d 124, 92 N.W.2d 349 (1958), but an answer to this problem became unnecessary when the court concluded that an injury which occurred only 60 feet away from the track was close enough to be considered as an injury occurring "on or about the track." Also, the judge's observations in Southern Railway Co. v. Brunswick Pulp & Paper Co., 376 F.Supp. 96 (S.D.Ga.1974), cannot be deemed controlling because the pertinent language of the indemnity provision in that sidetrack agreement was not the same.

We find that either construction of this provision is logical. From the standpoint of Seaboard, we can see why it would wish to be indemnified for accidents caused by Walker's negligence regardless of where they occurred. By the same token, Walker could be expected to wish to limit its liability to accidents occurring on or about its premises. Because of this impasse we find it necessary to employ two well established maxims of construction, both of which weaken Seaboard's position. The first is the rule that a provision in a contract will be construed most strongly against the party who drafted it, in this case Seaboard. Lindquist v. Burklew, 123 So.2d 261 (Fla. 2d DCA 1960). The second is that where an indemnification is not given by one in the insurance business but is given incident to a contract whose main purpose is not indemnification, the indemnity provision must be construed strictly in favor of the indemnitor. Thomas v. Atlantic Coast Line R. Co., 201 F.2d 167 (5th Cir. 1953). The positioning of the words "while on or about the track" in the sentence also tends to slightly favor Walker. Therefore, in the absence of other guidance, we conclude that the indemnity provision of the sidetrack agreement was inapplicable because the accident did not occur "on or about the tracks."

We also believe that the court should have directed a verdict on Count II. The OC-1 printed form upon which this count was based was a shipping order and receipt for cargo in which Walker acknowledged

(I or we) have loaded in good order and condition the cars shown below and same is ready for handling as indicated. Please forward subject to carrier bill of lading.

This language seems more logically directed to the condition of the goods at the time they are loaded rather than the manner in which they have been loaded. Perhaps this provision would have been significant if there had been a claim that the scrap had been damaged during the shipment. ² See Annot., 33 A.L.R.2d 867 (1954). In any event, we fail to see how this provision of the OC-1 could constitute an express warranty, the breach of which makes Walker liable for injuries to a third party. ³

On the cross-appeal, Seaboard's contentions with respect to Counts I and VI may be easily disposed of. On Count I Seaboard's negligence was at least as active as the negligence of Walker. Not only did Seaboard have a responsibility to inspect the car for an improper load, but it was Seaboard's defective coupling device which ultimately caused Warder to be in the position where the scrap could fall on him. As far as Count VI is concerned, the evidence falls far short of that necessary to demonstrate that Walker was guilty of willful and wanton misconduct.

Count V merits more consideration. This was a claim for contribution under Section 768.31, Florida Statutes (1975), under which Seaboard asserted that the parties were joint tortfeasors and that by virtue of a judgment against it, Seaboard was entitled to recover half of the amount paid to Warder. The effective date of the Uniform Contribution Among Tortfeasors Act was June 12, 1975. The act provided that it would apply to all causes of action pending on the effective date wherein the rights of contribution among joint tortfeasors were involved and to cases thereafter filed. Section 768.31(7). By that date the Warder trial had taken place, but the appeal was still pending and the present suit had not yet been filed. Therefore, the statute applied to Seaboard's claim for contribution, providing Seaboard fit within its provisions. Warn...