Summary
In New York Central Railroad Co. v. Linamen, 171 Ohio St. 87, 167 N.E.2d 778 (1960), the Supreme Court of Ohio applied the requirements of Globe Indemnity to indemnification for attorney's fees incurred in litigation that settled.
Summary of this case from National Union v. CavinsOpinion
No. 36230
Decided June 8, 1960.
Indemnity — Contractor trespassing on railroad property — Injuries resulting to railroad employee — Railroad responding in damages may have indemnity from contractor, when — Proof required in action for indemnity — Notice to contractor — Legal liability — Fair settlement.
APPEAL from the Court of Appeals for Franklin County.
While defendant, Linamen, a contractor, was engaged in constructing a concrete block wall on premises adjacent to the plaintiff's railroad yard and spur track therein, he constructed a certain batter board, one end of which encroached on plaintiff's property without authority or permission of plaintiff. This batter board was one inch thick, four inches wide and approximately 24 to 36 inches long, held in a horizontal position by two stakes, two by two inches, approximately 24 to 28 inches in length and driven into the ground six to eight inches. The height of the horizontal board was from 16 to 24 inches from the ground. The outer edge of this batter board was in close proximity to the outer rail of the spur track in plaintiff's railroad yard.
While one Balo, employed by plaintiff as a yard conductor, was riding the front stirrup or step of a gondola car being pushed onto this spur track at night, he saw the batter board, thought it was going to hit his feet and, to avoid it, dropped off the car. As he turned to signal the engineer, the middle part of the gondola car struck his shoulder, causing him to fall backwards against the batter board, resulting in personal injuries. Balo brought suit against the plaintiff in Cook County, Illinois, to recover for such injuries, claiming negligence on the part of plaintiff in permitting the batter board to be erected in close proximity to the track. The suit was settled.
The instant action was brought by the plaintiff railroad against the contractor to recover the " out-of-pocket" loss suffered by the railroad in payment of the settlement with Balo, plus expenses and attorney fees, as "the direct, consequential and proximate result of said trespass by defendant" on plaintiff's premises by the erection of the batter board.
At the close of plaintiff's case, the trial court directed a verdict for defendant.
The Court of Appeals reversed the judgment of the trial court for directing a verdict and remanded the cause for a new trial.
The allowance of a motion to certify the record brings the cause to this court for review.
Messrs. Wilson Rector, for appellee.
Messrs. Lane, Huggard Alton, for appellant.
Since plaintiff has neither alleged nor proved that any notice of Balo's suit was given to defendant before its settlement or that the amount of that settlement and of the expenses incurred with respect to that suit and its settlement was fair and reasonable, plaintiff has not established any right to recover its claimed loss in payment of that settlement and those expenses. See Globe Indemnity Co. v. Schmitt, 142 Ohio St. 595.
The judgment of the Court of Appeals is reversed, and the judgment of the Common Pleas Court is affirmed.
Judgment reversed.
ZIMMERMAN, TAFT, MATTHIAS, BELL and PECK, JJ., concur.
WEYGANDT, C.J., and HERBERT, J., dissent.