Seaboard Air Line Railway Co. v. Main

Walker, J., after stating the case: — The first ground of demurrer is untenable, as it appears from the record that the court permitted an amendment of the complaint by which the date of the release was changed from October 10, 1902, to November 10, 1902. This is quite sufficient to dispose of this ground of demurrer. But we do not think that an amendment was necesary for the purpose, as it clearly appears from the context of the complaint that the date affixed to the release was intended for November 10, 1902. It is expressly alleged in Section 8 that a release was given on November, 10, 1902, and it is so impliedly stated in Section 9. But the amendment cures the defect, if there was one. The second ground of demurrer can not be sustained. It is true, as stated, that the plaintiff was not as explicit in mak *452 ing the allegation in question as it might have been, but the allegation is sufficiently intelligible to enable the defendant to know what he is required to answer. “In the construction of a pleading for the purpose of determining its effect, its allegations shall be liberally construed, with a view of substantial justice between the parties.” The Code, Sec. 260. But there is another conclusive answer to this objection. The plaintiff alleges in section 5 that Allen is “one of the parties referred to in section 11 of the contract,” and we find that section 11 provides that the railroad company shall not be held liable for the injury to any agent or employee of the defendant to an amount greater than $50 and that if the railroad company shall be so held liable the defendant will pay the excess to the railroad company. It follows from this allegation that Allen was either in one of the four coaches of the defendant at the time of the injury, or on one of the plaintiffs’ coaches where he had the right to be by virtue of the provisions of section 5 of the contract. By section 11 the plaintiff is indemnified against all liability in excess of $50 for any injury to an agent or employee of the„defendant, and it necessarily follows from these allegations of the complaint, when considered together, that Allen was rightfully in the car at the time the injury was received. We are further inclined to think that the complaint sufficiently shows that he was in one of the passenger coaches of the defendant, if the particular allegation, which has fallen under the condemnation of the defendant in his demurrer, is construed in connection with the other averments of the complaint. If the pleading was not sufficiently definite or certain to enable the defendant h> understand the precise nature of the allegation, it could by motion have obtained an order from the court requiring the plaintiff to make it definite and certain by amendment, but this can not be done by demurrer, as it is not the statement of a defective cause of action or the *453 defective statement of a good catise of action, but, at most, only an uncertain and indefinite statement of one of the facts constituting a cause of action. Allen v. Railroad, 120 N. C., 548. This brings us to the principal contention of the defendant that the plaintiff did not sustain the relation of a common carrier towards Allen, but was a private carrier, and as Allen was in the car only by virtue of the contract between the plaintiff and defendant, the former was not liable to him in damages for the injury, and consequently the defendant can not be liable to the plaintiff under the indemnity contract, as the payment of the money to Allen was voluntary and not in discharge of any liability of the plaintiff to him. It is contended by the defendant’s counsel that while a carrier can stipulate for release from liability for negligence in regard to property to be transported, it can not do so in regard to passengers “because public policy forbids such a waiver or release, and our courts follow the general Common Law doctrine that a carrier can not by contract secure exemption from liability for its own negligence.” It is argued that if the contract for indemnity amounts to the release of the plaintiff from liability for negligence, as such release is against public policy, the contract must be void as it contains a stipulation indemnifying the plaintiff against the consequences of a breach of duty and releasing the plaintiff from its common law liability. In the demurrer, the defendant seems to assert that the plaintiff under the terms of the contract was not a common carrier, but a private carrier and subject only to the responsibilities and liabilities of that relation, which are quite different from those of a public carrier. It seems to us that if the plaintiff was a common carrier with respect to Allen when he was injured, it has not, in any way by the contract, stipulated for exemption for negligence as between itself and Allen, and, as it has not done so the *454 contract must be valid. If Allen bad sued the plaintiff for bis damages, it could not have successfully pleaded that it bad been released, even if the law permitted such a release between carrier and passenger, and for the simple reason that there is no provision in the contract for any such release. The very nature and terms of the contract presuppose that the plaintiff will remain liable to any agent or employee of the defendant who- is injured by its negligence, otherwise there could be no indemnity, as that always implies a liability on the part of the person or corporation indemnified. But whether we regard the plaintiff as a common or a private carrier in its relation to Allen, we think that under the terms of the contract, and upon the admitted facts of the, case it was liable to Allen for the injuries be received. It must be borne in mind that the demurrer admits the material facts alleged in the complaint. In all respects, except loading, unloading and reloading, it appears from the complaint that the plaintiff bad the control and management of the cars of the defendant. It bad the right to inspect and repair them and to haul them in any of its trains and was required to provide necessary motive power, conductors, en-ginemen and other train men, and exercise a general supervision over the train. If the defendant bad the right to release the plaintiff as a public carrier from liability for injuries to its employees resulting from the plaintiff’s negligence, it has not chosen to do so, but on the contrary the very terms of the contract excluded any such idea and strongly implied, if by them it is not expressly provided, that the plaintiff shall be and remain liable for all such negligence. If the plaintiff at the time Allen was injured, did not occupy the position of a public or common carrier towards him by reason of the special terms of the contract of carriage between the plaintiff and defendant, and the plaintiff was but a private carrier, under a special contract, it was liable in *455 our opinion by the terms of that contract for any injury to Allen which was caused by its own negligence. By the contract, the parties did not profess to' release the railroad company from liability from acts of negligence, but the agreement is predicated upon the assumption that there may be negligence of the railroad company resulting in injury to the defendant’s employees, for which they should have their action. It would be vain indeed to indemnify the plaintiff against a liability that could never arise. It must be remembered that the contract provides, not only for a release from liability so far as the defendant itself may be concerned, but for indemnity against liability to its agents and servants. The cases cited by the defendant’s counsel have no application here. In Robertson v. Railroad, 156 Mass., 525; 32 Am. St. Rep., 482, the injury was caused, not by the negligence of the railroad company, but by that of the proprietors of the circus, the particular negligence being the defective condition of the trucks of its cars. There are other differences between the two cases. The case of Coup v. Railroad, 56 Mich., 111; 56 Am. Rep., 374, was one in which the plaintiff was the proprietor of a circus and sued for injury to his property, alleged to have been caused by the negligence of the railroad company, and not for injury to one of its servants. In Railroad v. Keefer, 146 Ind., 21, 58 Am. St. Rep., 348; 38 L. R. A., 93, it appeared that the plaintiff, who was an express messenger, had himself authorized the making of a contract releasing the railroad company from liability for negligence. Several cases of a like tenor were cited to us, but they all rested upon the reason that a railroad company as a common carrier may become a private carrier or bailee for hire, when, as a matter of accommodation or special agreement, it undertakes to carry something which it is not its business to carry, and that as such it can make its own terms *456 of carriage not involving any stipulation contrary to law or public policy. Lawson Cont. of Carriers, Sec. 110. This is a well recognized principle, but it can not affect the decision of this case, as the plaintiff did not stipulate for exemption from the consequences of its negligence as to the defendant’s employees and with their consent. It has expressly agreed to remain liable for such negligence to the employees of the defendant, and the engagement of the latter was to indemnify against this very liability. It is not necessary for us to decide in this case whether, under its facts and circumstances, the plaintiff could divest itself of the character of a common carrier by contract. Railroad v. Lockwood; 17 Wall., 376. Our case resembles that of Kenny v. Railroad, 125 N. Y., 422, which was a suit by an express messenger. It is there said that general words will not be construed to limit the responsibility of the carrier for negligence, and that the clause in question, which is similar to the one in this case, should be read so as not to necessarily release the railroad company or prevent an action by the employee of the express company against the former for damages for injuries received while on the road in the discharge of his duties, and the agreement should be considered as one to' indemnify the railroad company in the event of such action. “This,” says the court, “is a salutary and reasonable rule and the agreement a perfectly proper one for the parties to mabe,” and further that an entire exemption from liability for negligence, which caused the injury to the employee of the company indemnified, will not be presumed, but must be clearly expressed, and immunity from the consequences of such negligence will not be held to exist unless “it is read into the agreement in ipsissimis verbisThis must needs be the correct- doctrine, and, when tested by the rule thus laid down, the contract in this case can receive but one construction, namely, that the railroad company remained *457 liable to the employees of the defendant for the consequences of the negligent acts of itself or its servants. The language of the contract- is, that the railroad company shall be saved harmless for any damage to the persons of the defendant’s employees or agents, which is not the direct result of gross negligence; and again, that it shall not be held liable for a greater amount than $50, and if it should be held liable for a greater amount, the defendant binds himself to pay such excess to the plaintiff. This language is too plain to be misunderstood and clearly indicates the purpose to have been, not to exempt the railroad company from liability for negligence, but to indemnify it in case it should be liable. This brings the contract within the salutary rule of the law, and does not disappoint the intention of the parties. Besides, this court would hesitate to hold that. Allen had relinquished his right of action against the railroad company by a contract to which he had not consented and of which, so far as the case shows, he was entirely ignorant. He might well say “non Tiaec in foedera veniT There can be little or no question as to the validity of the contract as one of indemnity, even if we regard the railroad company as a common or public carrier and incapable in that capacity of stipulating against liability for its negligence, as such insurance against liability does not diminish the carrier’s own responsibility to the passenger under its care, but increases the means of meeting that responsibility; nor does such insurance tend to relax the carrier’s vigilance, as the carrier remains liable to the passenger and no principle of public policy is violated. Casualty Insurance Co. Case, 82 Md., 535; Insurance Co. v. E. & W. Trans. Co., 117 U. S., 324; Ins. Co. v. U. C. Co., 133 U. S., 387. But as we have treated this contract as one between the defendant and the plaintiff, as a private carrier, and the defendant, there can be no possible do-ubt as to its validity. *458 The defendant contends further that there should have-been an adjudication of the plaintiff’s liability to- Allen by a. court of competent jurisdiction before the plaintiff could call upon it for reimbursement under the contract. We can not agree with the defendant in this contention. It is alleged in the complaint that the defendant was notified by the plaintiff that Allen had made his demand for damages for the injuries he had received, and that he would take $750 in full settlement of his claim, and that the defendant “curtly refused to pay Allen one cent;” and that the sum paid Allen was less than the actual damages he sustained, and less than he could and would have recovered before a jury. By the demurrer, the defendant fully admits the truth of this allegation, and for the purpose of ruling upon the demurrer, we think the above statement is a sufficient allegation that the plaintiff has been damnified. The defendant, at the trial of the case, will not be concluded by the settlement with Allen, but will be at liberty to show that the amount paid was excessive, or that Allen was not entitled to recover anything. Why require the plaintiff to sue and recover judgment, when the defendant by demurrer admits the plaintiff’s liability to Allen and the amount thereof ? Kerr v. Mitchell, 18 E. C. L., 447; Laing v. Hanson (Tex. Law App.), 36 S. W. Rep., 117; Lindsey v. Parker, 142 Mass., 583; Connor v. Reeves, 103 N. Y., 527. The objection to the claim for $95.08, which amount was paid by the plaintiff to the sheriff for feeding the horses attached in this case, while they were in his possession, 'must be overruled. While it is not strictly speaking a cause of action and should not have been joined as such in this suit, and ought therefore to be disregarded, the defendant was not prejudiced by the failure of the court below to sustain his demurrer in this respect, as the expense of keeping the horses, which can hereafter be allowed by the court, must be taxed *459 in the costs and paid by the losing party (Clark’s Code, 3d Ed., Sec. 466), and it can make no difference to- the defendant how this allegation is considered, whether it is properly a part of the complaint or not, for the plaintiff’s recovery of this expense must necessarily depend upon its success at the final trial of the case. If the plaintiff wins in the end, the defendant must pay that expense; and if the plaintiff loses, it can have no reimbursement for the amount paid to the sheriff. It is a mere incident to the suit and not a part of the cause of action, and no issue as to it will be submitted to the jury. Upon a review of the whole matter, we do not find any error in the judgment of the court overruling the demurrer. Per Curiam. No Error.