Southern Ry. Co. v. Blunt & Ward

Decision Date09 November 1908
Docket Number1,282.
Citation165 F. 258
CourtU.S. District Court — Southern District of Alabama
PartiesSOUTHERN RY. CO. v. BLUNT & WARD.

Pettus Jeffries & Pettus, for plaintiff.

De Graffenried & Evins and Thomas E. Knight, for defendants.

TOULMIN District Judge.

This case was formerly before the court on the demurrers filed by defendants to the complaint, and many of the questions raised on this submission were disposed of by the ruling on the demurrers. Southern Ry. Co. v. Blunt & Ward (C.C.) 155 F. 496.

The plaintiff, Southern Railway Company, claims that under a contract of indemnity which it had with the defendants, Blunt & Ward, the defendants are liable to it, and should reimburse it for the sums paid out by plaintiff to third parties for cotton burned on the platform of defendants, which losses it claims were caused by the presence of the platform of defendants on its right of way. The defendants, on October 16, 1907, filed 30 or more pleas to the complaint, and on October 2, 1908, the plaintiff filed demurrers to these pleas on numerous grounds. Without going into a discussion of the different pleas, it is sufficient to say that, in my opinion only two of them are well made. Some of the pleas allege that the fire which destroyed the cotton was caused by the negligence of the plaintiff's agents. Under the contract between the parties the defendants agree to indemnify the plaintiff against all loss or injury caused by fire, or otherwise, howsoever resulting. The contract is not void as against public policy, and this plea is no answer to the complaint. Hartford Insurance Co. v. Chicago, etc., R.R Co., 70 F. 201, 17 C.C.A. 62, 30 L.R.A. 193, and cases cited.

The cases cited by defendants in reference to the defense that the loss and damage claimed arose from the negligence of plaintiff and its agents and servants relate to common carriers making contracts for immunity from their negligence or that of their agents. They hold that, to accomplish that object, the contract must be so expressed (expressly stipulated). Considerations based upon public policy and the nature of the carrier's undertaking influence the application of the rule, and forbid its operation, except where the carrier's immunity from the consequences of negligence is read in the agreement (in so many words)-- ipsissimis verbis. It must not be left to a presumption from the language. Such a contract, however, may be read as an agreement to indemnify the railroad company, in the event of an action against it, for recovery of damages caused by its negligence; and that would be a perfectly proper agreement for the parties to make, as a part of the consideration for the contract. This is held in one of the cases cited, where there was a contract between an express company and a railroad company; defendant, in relation to the business of the former over the railroad, providing that the defendant should be expressly relieved from and guaranteed against any liability for any damage done to the agents of the express company, whether in their employ as messengers or otherwise. Kennedy v. N.Y.C. & H.R.R. Co., 125 N.Y. 422, 26 N.E. 626. In the case in 17 Wall. 359, 21 L.Ed. 627 (Railroad Company v. Lockwood), the question presented was, whether a railroad company carrying passengers for hire can lawfully stipulate not to be answerable for their own or their servants' negligence in reference to such carriage. It was held it could not.

The duties and responsibilities of common carriers are prescribed by public policy. A common carrier exercises a public employment, and diligence and good faith in the discharge of his duties are essential to the public interests, and public policy forbids that he should be relieved by special agreement of diligence and fidelity which the law has exacted in the discharge of his duties as a common carrier.

He cannot protect himself from losses occasioned by his own fault. This doctrine, which is urged by defendants, and the authorities which they cite in support of their contention, applies to contracts of common carriers as such, and not to the contracts made by them not in the capacity of common carriers, which latter contracts are valid even though they stipulate for immunity against the carrier's negligence, which is the case here. Railroad Company v. Lockwood, supra.

Another defense set up by the pleas is that of res adjudicata. The complaint does not claim indemnity for any sums paid to defendants and the pleas do not show that the contract of indemnity was in issue in any of the suits referred to in said pleas. The defendants cannot evade their liability because third persons recovered judgments against the plaintiff for losses sustained by fire caused, it may be, by the negligence of plaintiff's agents. The plaintiff was primarily liable to these third parties, and it is indemnified against these very judgments that under the contract is being claimed by the railway company. This contention is well sustained by authority. In Kennedy v. N.Y.C. & H. Railroad Company, supra, there was a contract between an express company and a railroad company in relation to the business of the express company over the railroad company, which agreement provided that the defendant should be expressly relieved from and guaranteed against any liability for any damage done to the agents of the express company, whether in their employ as messengers or otherwise. The court held this employe of the express company had a right to recover against the railroad company, he being injured on one of the trains of the railroad company, and he recovered in the case for damages. The railroad company then sued the express company on their contract of indemnity, and the court held that that could be done, although it was shown in the case the recovery by the messenger was for the negligence of the railroad company.

I am of the opinion that the two pleas which set up that the insurance company has paid to the plaintiff the entire amount of the loss which it has sustained on account of the fire are good. If the railway company has been indemnified or paid the loss which it suffered, then it has no further interest in this suit, as it has suffered no damages for which it can claim indemnity from its indemnitors, the defendants. This however, would not apply to the insurer, the Transportation Mutual Insurance Company, as plaintiff. It is a general rule of law that, where an insurer pays to the assured the total amount of the loss, such insurer...

To continue reading

Request your trial
13 cases
  • Rhinehart v. Denver & R.G.R. Co.
    • United States
    • Supreme Court of Colorado
    • April 3, 1916
    ......107; Mobile & Montgomery Ry. Co. v. Jurey, 111 U.S. 584, 4 S.Ct. 566, 28 L.Ed. 527; Southern Ry. Co. v. Blunt & Ward (C. C.) 165 F. 258--cited by the railroad. company as sustaining their ......
  • Alabama Great So. R. Co. v. Louisville & Nashville R. Co.
    • United States
    • United States District Courts. 11th Circuit. United States District Court of Northern District of Alabama
    • January 3, 1955
    ...v. Davis, 3 Cir., 1925, 6 F.2d 729; Alabama Great Southern R. Co., v. Demobille, 1910, 167 Ala. 292, 52 So. 406; Southern R. Co. v. Blunt & Ward, 5 Cir., 1908, 165 F. 258; McKinney v. Mobile & O. R. Co., 1926, 215 Ala. 101, 109 So. 752; Griffiths v. Henry Broderick, Inc., 1947, 27 Wash.2d 9......
  • Manchester Marble Co. v. Rutland R. Co.
    • United States
    • United States State Supreme Court of Vermont
    • February 26, 1927
    ...following cases are cited: Hartford F. Ins. Co. v. Chicago, M. & St. P. R. Co., 175 U. S. 91, 20 S. Ct. 33, 44 L. Ed. 84; Southern R. Co. v. Blunt (C. C.) 165 F. 258; Stephens v. Southern P. Co., 109 Cal. 86, 41 P. 783, 29 L. R. A. 751, 50 Am. St. Rep. 17; Griswold v. Illinois C. R. Co., 90......
  • Federal Ins. Co. v. Detroit Fire & Marine Ins. Co.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • January 7, 1913
    ......688, 37 C.C.A. 190;. Insurance Co. v. Cosgrove, 85 Kan. 296, 299, 116 P. 819; Southern Ry. Co. v. Blunt & Ward (C.C.) 165 F. 258, 261; Ins. Co. v. R.R. Co., 41 S.C. 411, 412, 19. S.E. ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT