Thomas v. Atlantic Coast Line R. Co.

• Decision Date: 14 January 1953
• Docket Number: No. 13919.,13919.
• Citation: 201 F.2d 167
• Parties: THOMAS v. ATLANTIC COAST LINE R. CO.
• Court: U.S. Court of Appeals — Fifth Circuit

201 F.2d 167 (1953)

THOMAS v. ATLANTIC COAST LINE R. CO.

No. 13919.

United States Court of Appeals Fifth Circuit.

January 14, 1953.

Wareing T. Miller, West Palm Beach, Fla., Clarence J. Brown, Jr., Miama, Fla., for appellant.

Parker Holt and James A. Franklin, Fort Myers, Fla., for appellee.

Before BORAH, STRUM, and RIVES, Circuit Judges.

BORAH, Circuit Judge.

This is an action for damages filed in the state court by appellant, C. A. Thomas, against the appellee, Atlantic Coast Line Railroad Company. The case was removed to the federal court, and on motion of the defendant in the court below the action was dismissed and plaintiff has appealed.

The facts disclosed by the pleadings, which are material for consideration on this appeal are substantially as follows:

That on the afternoon of February 20, 1951, a freight train of the appellee railroad was parked at the railroad depot in the town of Lake Harbor, Florida; that at said time and place the members of the train crew did, in a gross, willful and wantonly negligent manner, and with reckless disregard of appellee's duty to protect appellant against injury, and with an intention to invade a legally protected interest of the appellant, build, kindle, and set fire to a pile of debris in close proximity to the building occupied by appellant which was adjacent to the railroad track; that with further reckless disregard of appellant's property, the crew left the fire burning and departed from the scene without extinguishing it; that as a consequence, and as a proximate result of the aforementioned acts, the fire spread to a point where it endangered appellant's property; and further, that when the spread of the fire was brought to the attention of appellee's depot agent, he remained passive and was dilatory in reporting or remedying the situation despite the imminent danger to appellant's property and that as a result, the building caught fire and was destroyed together with its contents.

Prior to the destruction of the property, appellant had leased from appellee a portion of its land for the purpose of maintaining a building formerly used as a packing house. The lease-contract is made an exhibit to appellant's complaint, and provides that the annual rental shall be the nominal sum of $60 per year. Omitting others, not here necessary to mention, this lease contained the following stipulation:

"Third: That Lessee shall and will indemnify and save harmless Lessor, it successors and assigns, against any and all claims, demands, suits, judgments and sums of money accruing to Lessee or to any person or persons against Lessor, for the loss of or damage to said building, its contents or any property placed on or stored in the said premises, whether the same is the result of fire caused by negligent emission of sparks from the locomotive engines of Lessor, or otherwise, however resulting."

Appellee relied upon this stipulation in the contract as exempting it from liability on account of the destruction of the property by fire, and its motion to dismiss setting up such defense was sustained. The propriety of the trial court's action in dismissing the complaint and entering judgment for appellee is the sole question presented on this appeal.

The contract was made in and was to be performed in Florida. It is, of course, to be governed by Florida law. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487. In Florida the common law is enforced, except where it has been modified by competent governmental authority. Cummer Lbr. Co. v. Silas, 98 Fla. 1158, 125 So. 372, 374. There, an almost complete survival of the common law freedom of contract exists.¹ In Atlantic Coast Line Railway v. Beazley, 54 Fla. 311, 45 So. 761, 762, the Supreme Court of Florida said: "A contract is not void, as against public policy, unless it is injurious to the interests of the public, or contravenes some established interest of society." It is clearly inferable from the language of this opinion that Florida has no public policy against contracts exempting railways from liability for ordinary negligence. This is undoubtedly the prevailing view for it is generally recognized elsewhere that a common carrier may contract against ordinary negligence on its part when not acting in the capacity of a common carrier. Hartford Fire Ins. Co. v. Chicago, etc., R. Co., 175 U.S. 91, 20 S.Ct. 33, 44 L.Ed. 84; Santa Fe P. & P. Co. v. Grant Bros. Const. Co., 228 U.S. 177, 181, 33 S.Ct. 474, 57 L.Ed. 787. We know of no Florida case construing the provision of the contract which appellee claims exempts it from all claims for damages from fire however resulting. In the absence of such controlling authority the meaning of the indemnity provision must be determined in the light of the well established rules of construction relating to written contracts.

It is the general rule that where the indemnity is not contracted for from an insurance company whose business...