Terminal R. Ass'n of St. Louis v. Ralston-Purina Co.

• Decision Date: 02 May 1944
• Docket Number: 38761
• Citation: 180 S.W.2d 693,352 Mo. 1013
• Parties: Terminal Railroad Association of St. Louis, Appellant, v. Ralston-Purina Company
• Court: Missouri Supreme Court

180 S.W.2d 693

352 Mo. 1013

Terminal Railroad Association of St. Louis, Appellant, v. Ralston-Purina Company

No. 38761

Supreme Court of Missouri

May 2, 1944

Rehearing Denied June 5, 1944.

Appeal from Circuit Court of City of St. Louis; Hon. Ernest F Oakley, Judge.

Reversed and remanded (with directions).

Joseph A. McClain, Jr., and Arnot L. Sheppard for appellant.

(1) A common carrier is under no common-law duty to install or operate over a private switch or industrial track. Such service is based upon a private carrier relationship, and the carrier may, without violating public policy, attach such conditions as it sees fit to the giving of such service, even to the extent of contracting against the consequences of its own negligence. This contract is, therefore, valid. Wabash R. Co. v. Ordelheide, 172 Mo. 436, 72 S.W 684; Farmers Elevator & Grain Co. v. Davis, 267 S.W. 393; Bates Coal Min. & Mercantile Co. v. Mo. Pac. R. Co., 296 S.W. 1049; Buckeye Cotton Oil Co. v. Louisville & Nashville R. Co., 24 F.2d 347; St. Clair v. Stevens, 123 F.2d 186; Santa Fe, P. & P.R. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787. (2) Assuming without conceding that it is the general rule that the language of an indemnity contract must be so clear as to leave no room for reasonable doubt that indemnity was intended to be provided for damages resulting from the indemnitee's own acts, appellant says the language of the contract here meets the requirements of that assumed rule; because it says that respondent shall "save and hold harmless" appellant "from all loss, damage, injury or death caused by obstructions being closer to the 'Industrial Track' than specified herein," and that respondent shall reimburse appellant for "all expenses caused by violation of any of the above covenants . . . including . . . money expended . . . in legal proceedings brought by claimants to recover damages for any matter connected with, incident to, or growing out of, this agreement." This language is so clear and unequivocal as to create liability here. Buckeye Cotton Oil Co. v. Louisville & Nashville R. Co., 24 F.2d 347; Baltimore & O.R. Co. v. Youngstown Boiler & Tank Co., 64 F.2d 638; Santa Fe, P. & P.R. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787; McCormick v. Shippy, 124 F. 48; National Transit Co. v. Davis, Director General, 6 F.2d 729, certiorari denied 269 U.S. 579, 46 S.Ct. 180, 70 L.Ed. 422; City of Cleveland v. B. & O.R. Co., 71 F.2d 89; Payne v. Natl. Transit Co., 300 F. 411, affirmed 6 F.2d 729; Cannon v. Bresch, 307 Pa. 31, 160 A. 595; Rhinehart v. Sou. P.R. Co., 38 F.Supp. 76. (3) Respondent was in control of the premises involved here by reason of its ownership of the land and buildings. Under these circumstances the rule is not applicable. Heman Const. Co. v. St. Louis, 256 Mo. 332, 165 S.W. 1032; Central Surety & Ins. Corp. v. Hinton, 130 S.W.2d 235; St. L.-S. F.R. Co. v. Stewart, 187 S.W. 836; United States v. Wallace, 18 F.2d 205; Buckeye Cotton Oil Co. v. Louisville & Nashville R. Co., 24 F.2d 347; North American Ry. Constr. Co. v. Cincinnati Traction Co., 172 F. 214. (4) Appellant's negligence was not the sole cause of Uhl's death. Respondent's obstructions too near the track was equally, at least, to blame for his death. Therefore, the rule stated supra is not applicable. United States v. Wallace, 18 F.2d 20; Sinclair Prairie Oil Co. v. Thornley, 127 F.2d 128; National Transit Co. v. Davis, Director General, 6 F.2d 729; Watkins v. B. & O.R. Co., 29 F.Supp. 700; Buckeye Cotton Oil Co. v. Louisville & Nashville R. Co., 24 F.2d 347. (5) But respondent will say that because the contract here provides that it shall be liable to appellant for all damages "caused" by the obstructions being closer to the track than specified in the contract, there is no liability upon it unless the presence of the obstructions were the direct, proximate, or sole cause of such damage. The contract does not so say, and this court cannot rewrite the contract for the parties, but must enforce it as written. The word "caused" is in no way limited or qualified. Therefore, it means "caused" as contemplated by the parties, and according to the law of contracts and not that of negligence. It therefore does not mean proximately, directly or solely "caused." See authorities cited under (2) supra; Watkins v. B. & O.R. Co., 29 F.Supp. 700. (6) Appellant's position is that the contract is in no wise ambiguous; but that it says exactly what the parties meant it to say, and that it means exactly what the parties said. The terms are not at all unusual, but are those in use every day by business men, and are to be given their ordinary meaning when used in ordinary business contracts. Buckeye Cotton Oil Co. v. Louisville & Nashville R. Co., 24 F.2d 347; Baltimore & O.R. Co. v. Youngstown Boiler & Tank Co., 64 F.2d 638; Santa Fe, P. & P.R. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 33 S.Ct. 474, 57 L.Ed. 787; McCormick v. Shippy, 124 F. 48; National Transit Co. v. Davis, Director General, 6 F.2d 729, certiorari denied 269 U.S. 579, 46 S.Ct. 180, 70 L.Ed. 422; City of Cleveland v. B. & O.R. Co., 71 F.2d 89. (7) In view of the fact that the term is used in the contract only with respect to a railroad track, the word "roadbed" can have no meaning other than the "foundation for the superstructure of ties, rails, etc.," of a railroad. State ex rel. Hayes v. Hannibal & St. J.R. Co., 135 Mo. 618, 37 S.W. 532; Webster's Unabridged Dictionary.

John F. Evans for respondent.

(1) There is substantial evidence in the record to support a finding that the Industrial Track Agreement is ambiguous and uncertain as to the precise meaning of the language concerning the clearance provisions. Having been drawn by the railroad, the language used must be construed most strongly against appellant and in favor of respondent, and in view of the surrounding circumstances there was no meeting of minds that the clearance provisions were to apply within the elevator tunnel. Groghan v. Savings Trust Co., 231 Mo.App. 1161, 85 S.W.2d 239; John Deere Plow Co. v. Gooch, 230 Mo.App. 167, 91 S.W.2d 145; Sanders v. Sheets, 287 S.W. 1069; 12 Am. Juris. 557, Contracts, sec. 65. (2) A contract will not be construed so as to require one of the parties to perform an impossibility. Am. Jur., Contracts, secs. 115, 363. (3) The indemnity does not require the industry to reimburse the railroad for a loss caused by its own violation of law. Before an indemnity agreement can be construed to cover a loss occasioned by the indemnitee's own act or negligence, the language used must be so clear and unequivocal as to leave no room for doubt as to the intention of the parties. 27 Am. Jur. 464, Indemnity, sec. 15; Annotation, 38 A.L.R. 580; Dingledy Lbr. Co. v. Erie Rd. Co., 102 Ohio St. 236, 131 N.E. 723; Boston & M. Rd. Co. v. Stuart & Son, 236 Mass. 98, 127 N.E. 532; Toronto v. Lambert, 54 Can. S.C. 200; Mitchell v. Southern Ry. Co., 124 Ky. 146, 74 S.W. 216; Manhattan R. Co. v. Cornell, 7 N.Y.S. 557; Perry v. Payne, 217 Pa. 252, 66 A. 553. (4) Whether the railroad solely caused or directly contributed to cause the loss, it cannot recover on the indemnity. Mo. Dist. Tel. Co. v. S.W. Bell Tel. Co., 338 Mo. 692, 93 S.W.2d 19; Central Surety Corp. v. Hinton, 130 S.W.2d 235; Mo. Pac. R. Co. v. Sonken-Galamba, 274 S.W. 930.

Bradley, C. Dalton and Van Osdol, CC., concur.

OPINION

PER CURIAM

Action on an indemnity contract to recover $ 20,094.95. Cause was tried to the court without a jury. Finding and judgment went for defendant and plaintiff appealed.

Defendant, respondent here, is engaged in the processing of foods and has a plant, in St. Louis, which requires the use of switch tracks upon which to move cars to and from its premises. Plaintiff, appellant here, is a railroad company and one of its functions is to switch cars from connecting carriers to industrial plants in St. Louis. In 1890, defendant's predecessor in title, constructed an elevator building on the plant premises, and, on the east side of the building, there is what is called the tunnel which extends north and south through the building. In 1906, railroad tracks were constructed (by defendant's predecessor in title, we infer) through the tunnel. September 22, 1926, plaintiff entered into the indemnity contract with the Checkerboard Elevator Company (defendant's predecessor). In 1936, defendant assumed all obligations of the Checkerboard Elevator Company under the indemnity contract. In the contract, except in the preliminary paragraph, plaintiff is referred to as the Railroad, and the Checkerboard Elevator Company as the Industry. The Third, Fifteenth, and Twentieth paragraphs of the contract provide:

"Third. The Industry shall: (a) Furnish and maintain a roadbed with alignment and grades, and otherwise satisfactory to the Engineer of the Railroad, or his authorized representative hereinafter designated Engineer, without any buildings, poles or other obstructions of any kind within eight (8) feet six inches along tangents, and nine (9) feet six (6) inches along curves on either side of the center line of the Industrial track, and for twenty-two (22) feet above top of rails . . . ."

"Fifteenth. The Industry shall save and hold harmless the Railroad from all loss, damage, injury or death caused by obstructions being closer to the Industrial track than specified herein."

"Twentieth. The Industry shall reimburse the Railroad for all expenses caused by violation of any of the above covenants agreements, terms or conditions, including reasonable fees of attorneys, or money expended or incurred in legal proceedings, brought by claimants to recover damages for any matter connected with, incident to, or growing out of...