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MILLER AND COMPANY OF BIRMINGHAM v. LOUISVILLE & N. R. CO.

No. 20355.

328 F.2d 73 (1964)

MILLER AND COMPANY OF BIRMINGHAM, Inc., Appellant, v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY, Appellee.

United States Court of Appeals Fifth Circuit.

January 31, 1964.

Attorney(s) appearing for the Case

James E. Clark, Birmingham, Ala., London, Yancey, Clark & Allen, Birmingham, Ala., of counsel, for appellant.

Henry E. Simpson, Birmingham, Ala., Lange, Simpson, Robinson & Somerville, Birmingham, Ala., of counsel, for appellee.

Before RIVES and WISDOM, Circuit Judges.

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 industry1 in favor of the railroad. The case was tried on stipulated facts. Paragraphs (12) and (14) of the contract between the railroad (first party) and the industry (second party) read as follows:

"(12) Second party agrees that it will not construct any overhead...

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