Watson v. Southern Ry. Co.

• Decision Date: 19 November 1975
• Docket Number: Civ. A. No. 75-362.
• Citation: 420 F. Supp. 483
• Court: U.S. District Court — District of South Carolina
• Parties: Jerrald A. WATSON and United States Fidelity & Guaranty Company, Plaintiffs, v. SOUTHERN RAILWAY COMPANY, Defendant.

420 F. Supp. 483

Jerrald A. WATSON and United States Fidelity & Guaranty Company, Plaintiffs, v. SOUTHERN RAILWAY COMPANY, Defendant.

Civ. A. No. 75-362.

United States District Court, D. South Carolina, Greenwood Division.

November 19, 1975.

Billy C. Coleman, Saluda, S. C., William T. Jones, Greenwood, S. C., Ronald L. Motley, Barnwell, S. C., Robert F. Fuller, Columbia, S. C., and J. Kendall Few, Anderson, S. C., for Jerrald A. Watson.

Heyward E. McDonald, Columbia, S. C., for U. S. Fidelity and Guaranty Co.

Robert J. Thomas, Columbia, S. C., for Southern Ry. Co.

ORDER ON MOTION FOR SUMMARY JUDGMENT

HEMPHILL, District Judge.

In this diversity action, originally filed in the Court of Common Pleas for Saluda County, South Carolina, and removed to this court by petition and bond for removal, filed in this court March 3, 1975, defendant Southern Railway Company seeks a summary judgment in its favor under the provisions of Rule 56(a),¹ Federal Rules of Civil Procedure. Plaintiffs resist. The court examines in the light of the pleadings, the discovery displayed in the record before it, and the excellent memoranda prepared by counsel for the various parties.

The original action arises out of the collision, which admittedly occurred on June 13, 1974, in Saluda County, South Carolina, by and between a train or parts of a train of the defendant and a peach shed of the plaintiff, who was in the peach growing and processing business at or near Monetta, in the County of Saluda, in the State of South Carolina. The point of the collision was admittedly on the right-of-way of the defendant. Admittedly, also, on December 1, 1944, defendant and Mrs. Mary F. Watson, from whom the plaintiff assumed² entered into a written agreement by the terms of which Southern granted to Mrs. Watson the right or license to occupy and use a strip of land on Southern's Augusta to Columbia mainline right-of-way having an area of 13,448 square feet, and also the right to maintain packing house, shed and platform, and the right to construct and maintain an additional packing house, or a portion thereof, next to a spur track with only a few feet of clearance. The collision caused considerable damage to the packing house, and it is for this damage that plaintiffs are suing.³ Copies of the agreement between the late Mrs. Watson and defendant are part of the record, and admitted as true, as are copies of an attached drawing and plat to show the position of the properties of the parties. The location of the packing house, shed and platform, and particularly their proximity to the track, were a material consideration in this case.

In paragraph 4 of its original answer, and in paragraph 4 of its first defense of its amended answer, and also paragraph 5 of its amended answer (part of its second defense), defendant has pleaded the provisions of the license agreement between Watson and Southern, particularly paragraph 8 of said agreement which provides:

8. That inasmuch as the use by the Licensee of property of the Railway Company in exercise of privileges herein granted may create risks of fire or other loss, injury or damage which would not accrue except for such use, and the Railway Company would not grant said privileges except upon the condition that it shall be protected against any risk so created, the Licensee, in consideration of said privileges, covenants hereby to protect and indemnify the Railway Company and save it wholly harmless from the consequences of any property loss or damage, death or personal injury whatever, accruing or suffered or sustained from or by reason of any act, negligence or default of the Licensee, her servants, agents or employees, in or about or in connection with the exercise of the privileges hereby granted, or which may in any manner or to any extent be attributable thereto, or to the presence of the structures of the Licensee, or contents thereof, or any other property of the Licensee on said premises of the Railway Company, and whether or not negligence on the part of the Railway Company, its servants, or employees, may have contributed to the loss, injury or damage, except that the Licensee shall not be held responsible for any loss of life or personal injury, or damage to cars or property of the Railway Company, accruing from its own negligence, without fault of the Licensee, her agents, servants or employees.

The crucial issue in this decision is whether the foregoing provision obligates Watson, the licensee, to indemnify Southern from the consequences of the property loss and damage of the plaintiffs which occurred when the train collided with the packing house.

SUMMARY JUDGMENT MOTION

This court is ever mindful of its limited authority and scope in the consideration of a summary judgment motion.

In Meltzer v. Atlantic Research Corp., 330 F.2d 946 (4th Cir. 1964) the opinion, as interpreted, has been headnoted to hold that on a motion to dismiss or summary judgment the allegations of the plaintiff are to be treated as admitted or as not genuinely in issue. The court is mindful of the fact, however, that it is not the office of Rule 56 to preserve purely speculative issues of fact for trial, Atlantic States Construction Co. v. Robert E. Lee & Company, Inc., 406 F.2d 827 (4th Cir. 1969) and summary judgment should not be denied merely because the pleadings create the appearance of a dispute. Bobo v. Page Engineering Co., 285 F.Supp. 664 (W.D.Pa.1967), affirmed 395 F.2d 991 (3rd Cir. 1968), cited in Hicks v. Unger Motor Co., 332 F.Supp. 118 (E.D.Pa.1971). Hopefully, this court can use the procedures involved in the decision for summary judgment in an effort to improve the machinery of justice. As Judge Winter pointed out in Bland v. Norfolk & Southern Ry. Co., 406 F.2d 863, 866 (4th Cir. 1969):

The function of a motion for summary judgment is to smoke out if there is any case, i. e., any genuine dispute as to any material fact, and, if there is no case, to conserve judicial time and energy by avoiding an unnecessary trial and by providing a speedy and efficient summary disposition.

As viewed by this court after a consideration of the entire file, the determination of this issue presently before the court, the integrity of the contract admittedly in force at the time of the collision, may be dispositive of the case. If the contract has no integrity, then the case can proceed to trial; if the contract has the integrity which the defendant insists, plaintiff has no case.

Since its impact is rather drastic, a summary judgment must be used with due regard for its purposes and should be cautiously invoked so that no person will be improperly deprived of a trial of the disputed factual issues.⁴

CONCLUSIONS OF LAW

A marked similarity exists between the language of the contract interpreted in Southern Railway v. Coca Cola Bottling Co., 145 F.2d 304 (4th Cir. 1944) and the language employed in paragraph 8 of the contract before this court. In fact both paragraphs were numbered 8. In the Coca Cola case the contract contained additional language upon which Judge Dobie based his opinion of liability. It is fairly obvious, that in the preparation of the contract here, counsel for the railroad were relying upon the ruling of the Fourth Circuit in Coca Cola and consequently omitted the language upon which liability was predicated in that case. Thus, the language here is so broad as:

To protect and indemnify the Railway Company and save it wholly harmless from . . . any property loss or damage . . . accruing . . . by reason of any act.

It appears from this language that the railroad is wholly indemnified by the contract.

The Coca Cola case involved a personal injury to a railroad employee whose body struck a building of the Coca Cola Bottling Company. Since a personal injury was involved, the excepting clause of provision (the last clause quoted from the contract in the opinion) was brought into play. The clause provided:

* * * Except that the Licensee shall not be held responsible for any loss of life or personal injury, or damage to cars or property of the Railway Company, accruing from its own negligence, without fault of the Licensee, its servants or employees. (Emphasis added.)

Because of the excepting clause just quoted, the Coca Cola court held that if the railroad were negligent, and the bottling company were not negligent, the railroad could not invoke the indemnity provision and that negligence on the part of the bottling company could not be predicated on the location of the building at the precise place provided for in the contract.

Under the terms of the agreement before the court here, the negligence is irrelevant. Since the loss for which recovery is sought did not arise from loss of life, personal injury or damage to railroad cars or property, the indemnity provision expressly provides that the railroad is to be indemnified whether or not there was negligence on its part. The liability of the licensee to indemnify the railroad is in no way dependent on negligence on the part of the licensee. It is only dependent upon the presence of the licensee's building. The operative words of the provision are as follows:

* * * Watson covenants hereby to protect and indemnify Southern Railway Company and save it wholly harmless from the consequences of any property loss or damage * * * which may in any manner or to any extent be attributable * * * to the presence of the structures of Watson upon said premises of Southern Railway Company, and whether or not negligence on the part of Southern Railway Company, its servants, or employees, may have contributed to such loss, injury, or damage * *.

In Bohannon v. Southern Ry. Co., 97 Ga. App. 849, 104 S.E.2d 603 (1958), the court stated that "a loss of a building by fire due to outside causes, is not a loss attributable to, due to, or occasioned by the building itself." (Emphasis by the court itself.) But the court omitted three words contained in the...