RIVES, Circuit Judge.
In a declaratory judgment action, the district court construed the indemnity provisions of a spur-track agreement between the railroad and the industry
The contract was drawn by the railroad, and executed by both the railroad and the industry. The railroad built the spur track in consideration, among other things, of the industry executing the contract.
An employee of the industry filed suit against the railroad charging that it negligently operated railroad cars at the premises of the industry so as to cause them to collide with a lumber rack and force it into a wooden shed which collapsed on and injured the employee. The wooden shed was six feet, at its closest point, from the center line of the spur track. The shed was constructed by the industry more than two years prior to the accident, and the railroad had knowledge of its location and of its proximity to the spur track. The lumber rack was on the premises of the industry, and had been placed in the immediate vicinity of the spur track by employees of the industry other than the injured employee. The outermost portion of the railroad car alleged in the employee's complaint to
The railroad, upon being sued, made demand upon the industry to defend the action and to pay any loss which might be sustained by the railroad. The industry declined, and the railroad then filed this declaratory judgment action praying that the court declare whether, under the provisions of the contract, the industry is obligated to defend the action and to hold the railroad harmless. By its answer the industry joined with the railroad in seeking an adjudication of the controversy. The district court said in its conclusions of law:
The district court adjudged that the industry is bound to defend the suit of its employee against the railroad and to hold the railroad harmless.
The industry's principal reliance is upon this Court's decision in Batson-Cook Co. v. Industrial Steel Erectors, 5 Cir.1958, 257 F.2d 410. In that case we stated the rule in Alabama to be that, "while it need not be done in any particular language or form, unless the intention is unequivocally expressed in the plainest of words, the law will consider that the parties did not undertake to indemnify one against the consequences of his own negligence." 257 F.2d at 412. No such clear intent was found in Batson-Cook because the contract did not contain "the talismanic words `even though caused, occasioned or contributed to by the negligence, sole or concurrent' of the Indemnitee, or like expressions * * * [or] the equivalent clear intent in other language of the agreement." 257 F.2d at 412. The opinion continued that, "The purpose to impose this extraordinary liability on the Indemnitor must be spelled out in unmistakable terms." 257 F.2d at 413.
The industry devotes the major part of its lengthy brief to a vigorous defense of Batson-Cook against criticisms contained in Jacksonville Terminal Co. v. Railway Express Agency, Inc., 5 Cir.1962, 296 F.2d 256; Crescent Towing
The industry admits that it constructed the wooden shed six feet at its closest point from the center line of the spur track and the lumber rack in the immediate vicinity of the track, whereas it had agreed not to put any structure or obstruction, temporary or permanent, within eight feet from the center line of the track. The industry agreed to "indemnify and save harmless the first party (railroad) against and from any and all claims for loss of or damage to property or injury to person caused directly or indirectly by the existence, location or condition of any structures or obstructions of any kind on the premises of second party, or by any structures or obstructions, of either a permanent or temporary nature, on said track, or within the limits of the clearances above provided."
If there were any doubt that "any and all claims" as used in the 12th paragraph include claims contributed to by the negligence of the railroad, that doubt would be removed by the 14th paragraph, certainly insofar as injuries to employees are concerned. To repeat, the 14th paragraph provides, in part, that: "* * * if any claim or liability shall arise from the joint or concurring act or omission of both parties hereto, their employees or agents, each party shall assume all liability for and indemnify the other party against loss, damage or injury to its own employees and to its own property and the property of others in its care or custody, and liability for loss, damage or injury not herein provided for shall be borne by the parties equally. Provided, that nothing in this section contained is intended to or shall relieve second party of the obligations of release and indemnity contained in Sections 11 and 12."
The contention that the phrase "any claim or liability (arising) from the joint or concurring act or omission of both parties" does not unequivocally include negligent acts or omissions is unfounded. Admittedly, the phrase is broader, for it would include also intentional torts and breaches of contractual duties, such as the industry's breach of its promises in Paragraph 12. But to say that it does not include negligent acts would be to say that use of the word "negligence" is essential. Batson-Cook made no such holding, but expressly indicated otherwise — "* * * while it need not be done in any particular language * *" 257 F.2d at 412. The Supreme Court of Alabama speaking on the related subject of release of a grantor from liability caused by mining operations, was even more explicit:
Moreover, the final proviso in Paragraph 14 is a clear recognition by the parties that the industry's obligation of indemnity contained in Paragraph 12 is broader than its promises in Paragraph 14, and covers other claims or liabilities as well. We conclude that the industry's indemnity embraced claims based on the railroad's negligence.
It had seemed to us that if the contract to indemnify the railroad does not embrace claims based on the railroad's negligence it had no meaning. In a supplemental brief, appellant's able counsel sought to refute that view.
The industry did not plead as an affirmative defense that the indemnity agreement is an illegal contract, but it does urge that the public policy of the State does not permit a construction which would indemnify a common carrier for its own negligent conduct. As noted, however, in a valuable annotation in 175 A.L.R. at p. 102, "* * * the service
The stipulated facts do not connect the railroad's negligence with its duties as a common carrier, or even show that the railroad is a common carrier, though we take judicial notice that it is.
It makes no difference that an Alabama statute
In the main, we agree with the district court's construction of the indemnity agreement. We disagree, however, with its judgment that the industry is bound and obligated to defend the suit of its employee against the railroad. The industry has the option to take its chances and await the possible event of the liability of the railroad becoming fixed and ascertained. King v. Capitol Amusement Co., 1930, 222 Ala. 115, 130 So. 799. However, after notice and an opportunity to defend, any judgment against the railroad will be conclusive against the indemnitor industry, unless obtained by fraud or collusion.
The judgment is therefore modified so as to eliminate the provision that the industry is bound and obligated to defend the suit of its employee against the railroad. As so modified, the judgment is affirmed. Costs of appeal are taxed against the appellant.
Modified and affirmed.
"At the argument of this appeal, counsel for the appellant was requested to suggest to the Court a field of operation for the hold harmless agreement relied upon by the Railroad if the appellee is not to be indemnified thereunder for loss or liability arising out of its own negligent conduct. In this connection we submit that in Alabama under the authority of Mallory Steamship Company v. Druhan, 17 Ala.App. 365, 84 So. 874,  `where both parties are at fault but the fault of the party from whom indemnity is claimed was the efficient cause of the injury,' indemnity is recoverable. See also City of Mobile v. George, 253 Ala. 591, 45 So.2d 778, to the effect that one held liable to an injured person because of his passive negligence has rights of indemnity over against another who was not sued by the injured party, but who was guilty of active negligence. * * *
"We further suggest that the sidetrack agreement could effectively provide indemnity to the Railroad for loss and expense incurred by it in the investigation and defense of an action arising out of some alleged wrong claimed to have been committed by it involving the tracks on the premises of the appellant industry, but where it is adjudicated that the Railroad is free of fault on account of its lack of negligence. * * *
"* * * We submit that the Louisville & Nashville Railroad Company in its use of the sidetrack on the premises of Miller & Company of Birmingham, Inc., could incur a liability under the F.E.L.A. to one of its own employees thereupon injured by reason of its unsafe condition, and despite the absence of active negligence on the part of the railroad in creating the danger. The appellee could look to the industry, however, for indemnity on account of its breach of this non-delegable duty. * * *"
"All railroads and canals not constructed and used exclusively for private purposes, shall be public highways, and all railroad and canal companies shall be common carriers."