# Opposition Brief — Delaware, Lackawanna & Western Railroad v. Mostyn

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Opposition Brief
- **Published:** January 1, 1947
- **Citation:** 332 U.S. 770

## Text

iL& Corr Le

SEP 9 1947
= aa OLERD
Supreme Court
of the United States
OCTOBER TERM, 1947.
No. 249
DELAWARE, LACKAWANNA & WESTERN
RAILROAD COMPANY, .
Petitioner,
PS =
EDWARD MOSTYN,
Plaintiff-Respondent,
—vs.—

S. H. GOLDEN COMPANY, INC.,
3rd Party Defendant-Respondent.

On Petition for a Writ of Certiorari to the United States
Circuit Court of Appeals for the Second Circuit.

BRIEF FOR THE 3RD-PARTY DEFENDANT-
RESPONDENT, S. H. GOLDEN COMPANY,
INC., IN OPPOSITION.

/ TRACY H. FERGUSON,

BOND, SCHOENECK & KING,
Attorney for 3rd Party Defendant-Respondent,
S. H. Golden Company, Inc.,

1400 State Tower Building,
Syracuse, N. Y.

F. N. SPAULDING LAW PRINTING CO., SYRACUSE, N, Y.

INDEX.

Subject Index PAGE

Opinions Below heh dinkhceol chia at eee aad bb Gulela tae 2
i ee be kaceC Ch aAR hah cs 6s0 0040 5h0R4008 2
ee ee ak aks RAW be CAAA SOAS AM 3
Question Presented ....... 6... cece eee ee eee eee ees 5
Semmary Of Argument ...... ccc ci cece ccc cecenens 5
Te ee eee Teeter Tere eee ee eee Tere 6
EE SAAS ee ere ee ee ee Tee TT ee TE ee eee ee 6
a ee en ee OF or eee ee SS 15
NOG I Rae 2 ee ey eee 16

Statutes:

Federal Emplovers’ Liability Act, 45 USCA 51-60. .2, 4, 15
Judicial Code, Section 240(a) 2... .. ccc cee cen cnees 2

Table of Cases:

Amitrano vs. Board of Education, Sup. Ct. Kings Co.

Ce, GS CP EE Sk dcdksceh beans vaccaskeeeaeus 10
DeHaen vs. Rockwood Sprinkler Co., 258 N. Y. 350... 11
Dudar vs. Milef Realty Corp., 258 N. Y. 415.......... 11
Employers’ Liability Assurance Corp., Ltd., vs. Post

and McCord Ine. (1941), 286 N. Y. 254............. 10
Long Island Railroad Co. vs. American Bridge Co.,

175 App. Div. 170, 172-174, affd. 225 N. Y. 692...... 12
Manhattan Railwey vs. Cornell (1891), 54 Hun, 292,

ee By Es GON e tes ceesvadees dechanbabwades es 10
Petkinie vs. Mare Eidlitz & Son Ine. (1934), 266 N. Y.

PS REE WERE VGA KA LOMA EWE TL ECE RE ORAS Chae 10, 12
Post & McCord Ine. vs. N. Y. Municipal R. Corp., 187

App. Div. 467, 173-175, affd. 230 N. Y. 540.......... 11
Schwartz vs. Merola Bros. Construction Co. (1943),

SE hs MO a G5 iv ehatc these linker ees deers 9,11
Semanchuck vs. Fifth Ave. & 37th St. Corp (1943), 290

De: WEE <u uk ensue ccuyskokunebswe sk keke shane 9, 11
Thompson Starrett Co. vs. American Mutual Liability

Insurance (1937), 276 N. Y. 266 .................. 10
Thompson Starrett Co. vs. Otis Elevator Co. (1936),

Se ade Wis Olen Kak KacdueGech wean oe taenecses 10

Turner Construction Company vs. Rockwood Sprinkler
Company of Mass., et al., 275 N. Y. 635, 249 A. D.509 11
Walters vs. Rao Electrical Equipment Co. (1942), 289

Ee rere rer eer errr 9
Westinghouse, Church, Kerr & Co. vs. L. I. R. R. Co.,
160 App. Div. 200, affd. 216 N. Y. 697.............. 12

Wischnie vs. Dorsch, 296 N. Y. 257 (Adv. Sh. No. 419)

Supreme Court
of the United States

OCTOBER TERM, 1947.

NO. 249

DELAWARE, LACKAWANNA & WESTERN
RAILROAD COMPANY,
Petitioner,

—vs.—

EDWARD MOSTYN,
Plaintiff-Respondent,

a

S. H. GOLDEN COMPANY, INC.,
3rd Party Defendant-Respondent:.

On Petition for a Writ of Certiorari to the United States
Circuit Court of Appeals for the Second Circuit.

BRIEF FOR THE 3RD-PARTY DEFENDANT-
RESPONDENT, S. H. GOLDEN COMPANY,
INC., IN OPPOSITION.

2
Opinions Below.

There were two opinions by Judge Stephen W. Brennan
in the United States District Court for the Northern Dis-
trict of New Yor':. Neither has been officially reported.
They appear at R. 31-36 and at R. 382-388.

The prevailing opinion of the Circuit Court of Appeals
for the Second. Circuit, which was written by Judge
Learned Hand with whom Judge Clark concurred, is not
yet reported. It appears at R. 399-405. The opinion of
Judge Swan, who dissented in part, appears at R. 405-406.

Jurisdiction.

The judgment of the court below was entered May 9; 1947
(R. 407). The petition for certiorari was filed August 8,
1947; This: court’s jurisdiction is invoked under Section
240 (a) of the Judicial Code, Act of February 13, 1925, ¢.
229, Sec. 1, 48 Stat. 938.

The jurisdiction of the lower court was invoked by the
plaintiff-respondent, whose action was against the peti-
tioner, under the Federal Employers’ Liability Act, 45
USCA 51-60, April 22, 1908, ¢. 149, Sections 1-10, 35 Stat.
65-66 as amended and added by Apr. 5, 1910, ¢. 148, See-
tions 1-2, 36 Stat. 291; Mar. 3, 1911, ¢. 231, Section 291, 36
Stat. 1167 and Aug. 11, 1939, ce. 685, Sections 1-3, 53 Stat.
1404. The third-party defendant-respondent became a
party through the commencement by the petitioner of a
third-party action upon an indemnity agreement.

3
Statement of the Casa.

The accident out of which this action arose occurred on
August 12, 1944 (R. 48) at about one o’clock in the morning
(R. 110). The plaintiff-respondent, hereinafter called
Mostyn, was a trackman employed by the petitioner in the
maintenance of its tracks (R. 62). While so employed,
Mostyn lived in camp cars owned by the petitioner and
located upon a temporary siding at Sherburne, New York
(R. 64-65). The petitioner contracted! with the third party
defendant-responcdent, hereinafter called Golden, for the
operation of these cars as living quarters (R. 285); and
pursuant to the contract, Golden operated a kitchen and
commissary, furnished bedding, and cleaned the cars. The
petitioner deducted a fixed amount for board and lodging
from the wages of employees who lived in the cars and paid
these amounts to Golden (R. 86).

On the night of the accident, Mostyn did not sleep in his
bunk at the camp but lay down, instead, in an area about
five feet wide between a building and the nearer rail of a
ewitch track (R. 109). This place was about opposite the
ear in which Mostvn had his bunk (R. 103) and about twenty
feet from it (R. 224, Ex. B). He fell asleep and did not
awaken (R. 81) until an engine, owned by the petitioner
(R. 58) and backing down the switch track (R. 166) to pick
up and remove certain refrigerator cars (R.-238), had so
injured his right leg as to require amputation of his right
foot (R. 92).

It was the claim of Mostyn that he was unable to sleep
in his bunk car because it was infested with vermin and

1 Infra, P. 6.

4

that upon complaint to the foreman of his work gang, an
employee of.the petitioner, he had been given permission
to sleep outside upon the ground (R. 78). He claimed, too,
that he had been assured by the foreman that the switch
track was dead and that there would be no operation upon
it at night (R. 74}. He thus accounted for his sleeping at
the ill-fated spot.

Mostyn began an action against the petitioner under the
Federal Employers Liability Act, supra, to recover for his
injury. His action was hased solely upon the negligence of
the petitioner in its operation of the engine which caused
the injury (R. 15). The petitioner, by a third-party action,
claimed indemnity from Golden upon the contract for the
operation of the bunk cars. The contention was that, if
vermin were in fact in the car and Mostyn recovered,
Golden was liabie over to the petitioner upon the indemnity
provisions of the contract (R. 20-24).

The trial was by judge and jury. <A $10,000 verdict in
favor of Mostyn against the petitioner (R. 370), and a like
verdict in favor of the petitioner against Golden upon the
indemnity agreement (R. 375), were returned. Judgment
was entered upon them (R. 389-390). Golden appealed to
the Court below from the judgment and from the denials of
motions it had made (R. 394-396). Insofar as it was ad-
versely affected, the petitioner did likewise (R. 391-393).

The Court below, Judge Swan dissenting, affirmed the
judgment against the petitioner (R. 399-407). It reversed,
unanimously, the judgment against Golden and dismissed
the third-party complaint (R. 399-407).

5
Question Presented.

The petitioner’s action against Golden presents but a
single question: Under the law of New York, do the indem-
nity provisions ? of the contract between the petitioner and
Golden provide for the indemnity of petitioner against the
latter’s liability to Mostyn, such liability having been occa-
sioned by the petitioner’s own active negligence?

Summary of Argument.

Golden submits that the petition, insofar as it seeks re-
view of the reversal of the judgment against Golden by the
court below, should be denied for the following reasons:

1

1. The question of the interpretation of the indemnity
agreement is controlled by the law of New York. That law
is that a contract of indemnity will not be construed to
indemnify a person against losses arising out of his own
active negligence unless such an intention is expressed in
unequivocal terms. The loss for which the petitioner is
seeking indemnity was occasioned by its own active negli-
gence. The agreement does not provide in unequivocal
terms for indemnity against such a loss. The decision of
the Court below, therefore, is not in conflict with the ap-
plicable New York decisions.

2. Mostyn’s action against petitioner and that of peti-
tioner against Golden are separate, distinct and independ-
ent, as are the questions to which each has given rise. That
part of petitioner’s application which relates to the former
action may be granted without granting that part which
relates to the latter. Each part must be considered sepa-

2 Infra, P. 7.

6

rately, therefore, and whatever merit there may be in the
application so far as it relates to the Mostyn judgment adds
nothing to the petitioner’s application in the action against
Golden.

ARGUMENT.
POINT I.

The decision of the Court below is not in conflict
with the applicable New York decisions.

The provisions of the contract between Golden and the
petitioner for the maintenance and operation of the camp
cars were stipulated by counsel as follows (R. 285) :

‘“‘Tt is stipulated between the D. L. & W. RR. Co.
and the S. H. Golden Company, Inc. that on Jann-
ary 1, 1943. the Railroad and S. H. Golden Company,
Ine., entered into a contract for an adequate con-
sideration which was in force and effect during the
vear 1944, including the months of June, July and
August of that year, and that pursuant to the terms
of said contract during those months the S. H. Gol-
den Company, Inec., maintained the labor camp re-
ferred to in the testimony in this case just south and
west of the station at Sherburne, N. Y., and

It is further stipulated that pursuant to said con-
tract the S. H. Golden Company, Inc., agreed to far-
nish bedding, food, lodging and laundry service to
the men who lived at the camp; and further to keep
the said camp in a clean, neat, sightly, and sanitary

7

condition, and to allow no nuisance to be created
upon or in the vicinity of said camp.

It is stipulated further that the Railroad Com-
pany furnish for said camp the track, the cars, the
permanent fixtures, including tables, chairs, and
benches in the cars, together with light, water and
fuel.’’

The indemnity agreement contained in the contract is
this (R. 285-286) :

‘*To be fully and wholly responsible for any and
all loss of life or property or injury or damage to
person or property of any person or corporation,
including the parties hereto and their respective offi-
cers, agents and employees, which loss, injury or
damage may be due to, or arise out of, or result
from or be in any way connected with the services
to be performed by the contractor hereunder, or the
performance or lack of performance thereof, or any
act or omission of the contractor, its agents or em-
ployees in any way related thereto, and to indemnify
and save harmless the Railroad Company from and
against any and all claims, demands, actions, judg-
ments, awards of any kind, damages, losses, costs,
expenses and liability of every name and nature
(including all reasonable expenses which may be in-
curred by the Railroad Company in defending any
such action, claim or demand) which may arise or
result, directly or indirectly, from or by reason of
any such loss, damage, or injury, or from or by rea-
son of the failure of the contractor fully to keep,
perform and fulfill each and every agreement and
condition in this contract contained on its part to

8

he kept; performed and fulfilled. The contractor
further agrees to be fully and wholly responsible for
injury to or death of its agents, employees, invitees,
and licensees occurring on the premises of the rail-
road company in the vicinity of said camps, and to
indemnify and save harmless the railroad company
from and against any and all claims, demands, ac-
tions, judgments, awards of any kind, damages,
losses, costs, expenses and liabilities of every name
and nature (including all reasonable expenses that
may be incurred by the railroad company in defend-
ing any such action, claim, or demand) which may
arise or result, directly or indirectly, from or by
reason of such injury or death.”’

The controversy between. petitioner and Golden involves
interpretation of the indemnity agreement. The petitioner
contends that the agreement provides indemnity to it for
the judgment obtained by Mostyn. Golden disagrees. Its
contention is that the petitioner’s liability to Mostyn arose
out of the petitioner’s own active negligence and that the
parties did not intend by the agreement to safeguard the
petitioner from the results of such negligence. The Court
helow agreed with Golden.

No argument has been made by the petitioner, as indeed
none could, that there was not a finding of active negligence
implicit in the verdict of the jury for Mostyn. The propri-
ety of that verdict is not a matter of contest between the
petitioner and Golden. When the court below affirmed the
judgment for Mostyn, therefore, the issue for review in the
third-party action was single and clear-cut: Did the agree-
ment provide for the indemnification of the petitioner
against losses occasioned by its own active negligence?

9

Resolving this issue, the court below determined and ap-
plied the. New York law relating to the construction of
indemnity contracts. In the words of its opinion, the court
determined that law to be (R. 404):

‘«* * * that if the indemnitee means to throw the
loss upon the indemnitor for a fault in which he him-
self individually shares, he must express that pur-
pose beyond any peradventure of a doubt.”’

Having thus stated the rule, the court reversed the judg-
ment against Golden. By so doing, it. found that the agree-
ment lacked an unequivocal expression of the purpose the
petitioner contended was evidenced in it.

The petitioner now urges that this decision of the court
below is probably in conflict with the applicable decisions
of the New York courts. It is not clear from the petition
whether petitioner feels the court erred in determining or
in applying the New York law. In either event, as is below
demonstrated, the opinion of the petitioner is mistaken.

The New York law applicable to indemnity agreements
is that such a cont™act will not be construed to indemnify a
person against his own active negligence unless that inten-
tion is expressed in unequivocal terms. That this is the
established rule in New York is beyond doubt.

Semanchuck vs. Fifth Ave. & 37th St. Corp.
(1943), 290 N. Y. 412.

Schwartz vs. Merola Bros. Construction Co.
(1943), 290 N. Y. 145.

Walters vs. Rao Electrical Equipment Co.
(1942), 289 N. Y. 57.

10
Employers’ Liability Assurance Corp., Ltd., vs.
Post and McCord Inc. (1941), 286 N. Y. 254.

Thompson Starrett Co. vs. American Mutual
Liability Insurance (1937), 276 N. Y. 266.

Thompson Starrett Co. vs. Otis Elevator Co,
(1936), 271 N. Y. 36.

Petkinic vs. Marc Eidlitz & Son Inc. (1934), 266
N. Y. 487. ;

Manhattan Railway vs. Cornell (1891), 54 Hun.
292, aff. 130 N. Y. 637.

Amitrano vs. Board of Education, Sup. Ct.
Kings Co. (1945), 55 S. (2) 535.

In the Schwartz case, the Court stated: (Italics sup-
plied)

‘*While the parties are free to contract as between
themselves for the ultimate burden of liability due
to negligence, yet in the absence of explicit language
to the contrary, courts will not interpret an indem-
nity agreement as a promise by the indemnitor to
save harmless the indemnitee on account of the ac-
tive negligence of the latter. * * * Clearly the word-
ing of the indemnity agreement in the case at har is
not sufficiently broad to require indemnification if
the injury to the plaintiff can be charged to active
negligence on the part of the Bank.’’

Not one of the New York cases cited by the petitioner
questions this rule. Each of them was concerned with its
application. Each falls into one of two groups according
to the question it presented. In the first group are those

ll

cases in which the active or passive nature of the indem-
nitee’s negligence, if any, formed the issue; in the second,
those cases in which the problem was whether or not the
indemnity sought was promised in unequivocal terms.

The following of the cases* cited by the petitioner fall
into the first group: Schwartz v. Merola Bros. Construc-
tion Corp., 290 N. Y. 145, 153-156, 157-159; Turner Con-
struction Company v. Rockwood Sprinkler Company of
Mass., et al., 275 N. Y. 635 (See De Haen v. Rockwood
Sprinkler Co., 258 N. Y. 350) * and Post & McCord, Inc. v.
N. ¥. Municipal R. Corp., 187 App. Div. 167, 173-175, affd.
930 N. Y. 540. Indemnity was allowed in each of them only
after a finding that the indemnitee had been guilty either
of no negligence or of passive negligence.

Semanchuck v. Fifth Avenue & 37th St. Corp. (1943), 290
N. Y. 412.5 to which the petitioner also refers, is in this
group too. It illustrates a situation in which indemnity
was denied because of the affirmative negligence of the in-
demnitee. The concern of the court with the New York
Labor Law in that case was to determine if Section 241
thereof created a positive duty whose violation would con-
stitute active negligence. This determination was neces-
sary in order to apply the rule above set forth to the facts
of the case. Nothing in the decision limits the application
of the rule to eases in which Labor Law violations are pres-
ent. Its inquiry was directed solely to whether common
law standards of active or passive negligence could be ap-
plied to violations of Section 241.

3 P. 17, 18, Petition.

"4 See opinion in Appellate Division, 249 A. D. 509, and Dudar v. Milef Realty
Corp., 258 N. Y. 415.

5 P, 18, Petition.

12

The following of the cases* cited by the petitioner fall
into the second group: Long Island Railroad Co. v. Ameri-
can Bridge Co., 175 App. Div. 170, 172-174, affd. 225 N. Y.
692 and Westinghouse, Church, Kerr & Co. v. L. I. R. R.
Co., 160 App. Div. 200, affd. 216 N. Y. 697. Recovery by the
indemnitee was permitted in each of them only after a de-
termination that the indemnitor had unequivocally prom-
ised to indemnify for the consequences of the specific ac-
tivity out of which the indemnitee’s liability arose.

Wischnie v. Dorsch, 296 N. Y. 257 (Adv. Sh. No. 419) is
also cited by the petitioner to demonstrate the error of the
court below.’ Such a demonstration is not made by this
ease. The court was testing upon a motion the sufficiency
of a cross-claim for indemnity based upon common law prin-
ciples. It held the cross-claim sufficient because the wrong-
doing of the indemnitee, as set forth in the pleadings, did
not constitute active negligence. The inquiry by the court
into the nature of the indemnitee’s negligence reaffirmed
rather than questioned the rule applied by the court below.

The decisions of this Court and of the lower Federal
Courts cited by petitioner * do not apply New York law and
are not controlling in the instant case. <A discussion of
them is, therefore, unnecessary.

It is thus clear that the Court below did not err in deter-
mining the New York law applicable to petitioner’s claim
against Golden. And that it did not err in the application
of such law is demonstrated by the Petkinic case, supra.

6 P, 17, 18, Petition.
7 P. 19, Petition.
8 P. 18, Petition.

13

The official report of the Petkinic case is somewhat
sketchy. The facts are revealed in the record on appeal.
Kidlitz was the general contractor and MeGratty was a sub-
contractor. The general contractor erected a temporary
partition of plaster board and lumber but instead of fasten-
ing it correctly, ‘merely leaned it against timbers or up-
rights where it might fall if pushed. The plaintiff was
changing his clothes near the partition when employees of
the sub-contractor negligently dislodged the partition, and
it fell on the plaintiff. Plaintiff sued both contractor and
sub-contractor and recovered a verdict against both. The
general contractor moved for judgment over on bis cross
complaint, relying on the following indemnity agreement
(fols. 574-576 of the record on appeal. Italics supplied) :

‘““The sub-contractor hereby assumes entire re-
sponsibility and liability for any and all injuries to
any and all persons, including the sub-contractor’s
employees, and for any and all damage to property
caused by or resulting or arising out of any act or
omission on the part of the sub-contractor under or
in connection with the contract and/or the prosecu-
tion of the work thereunder, and shall indemnify
and save harinless the owner and general contractor
from and against any and all loss and/or expense
which they or either of them may suffer or pay as
a result of claims or suits due to, because of or aris-
ing out of any and all such injury and/or damage,
whether real or alleged, and the sub-contractor, if
requested, shall assume and defend at his own ex-
pense any such suits.”’

14

The Trial Court said (fols. 857-858 of the record on ap-
peal. Italics supplied) :

**Motion denied. Here the jury has found both of
the defendants at fault and jointly responsible for
this accident. If it were the purpose of that part of
the agreement between Mare Eidlitz & Sons, Inc., as
contractor, and McGratty and Sons, as sub-con-
tractors, set forth in paragraph fourth of the an-
swer, to hold the sub-contractor liable fer the par-
ticipating negligent acts of the employees of the
general contractor, certainly such a drastic exten-
sion of liability should not have been left to conjec-
ture when without any difficulty it could have been
expressed in clear and understandable English so
that he who runs may read,”’

The general contractor appealed but the Appellate Divi-
sion and Court of Appeals both affirmed the judgment with-
out opinion. (241 A. D. 720, 266 N. Y. 437.)

) OW NSQENET TO On tea oe “ wn euiiee — - “a —- — a =e ——

15°
POENT. TL.c

A review.of the judgment:of thescourt:.below. in
favor of Golden is not required even if it be»deters::
mined that a review of the judgment for Mostyn
should be had.: -

Mostyn’s action against the petitioner is based upon neg-
ligence and the Federal Employers’ Liability Act, supra.
The petitioner’s action against Golden is upon contract and
is governed by New York law. The‘ questions in each are
distinct and independent. The two actions might have been
brought separately; it was only for convenience that they
were tried together.

Golden expresses no opinion of the merits of the petition
so far as it relates to Mostyn. It does urge, however, that
whatever those merits may be, they add nothing to that
part of the application which relates to Golden. And no
sufficient reason for this Court’s action appears in that part
of the petition.

a — aoe ae eE LTE = she PO OO Spee
es . a

16
CONCLUSION.

The petition, so far as it relates to Golden, should
be denied.

TRACY H. FERGUSON,

BOND, SCHOENECK & KING,
Attorney for 3rd Party Defendant-
Respondent S. H. Golden Com-
pany, Inc.,
Office and P. 0. Address,
1400 State Tower Building,
Syracuse, New York.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_1288%3A2. Public record. Not legal advice.