1. The overruling of the defendant's motion for summary judgment was error.
2. The overruling of the motion to dismiss with respect to Counts 3 and 4 of the third-party complaint was error.
John L. Lester brought an action against Central of Georgia Railway Co. for damages for personal injuries sustained as a result of the defendant's alleged negligence. The complaint alleged substantially as follows: On September 29, 1966, at approximately 6:30 a.m., the plaintiff was an employee of Dillard Coal Co. and an invitee on the premises of the defendant's Athens depot, where he was engaged in attempting to open the door of one of the defendant's boxcars, which he was to unload. The door was held in place by an angled iron flange at its top, which projected out and then came down the front top of the door to keep it from falling. The metal flange had been bent out of place and the door was not being properly held thereby. Plaintiff removed the steel pin which held the door latch, then mashed down the handle so that his fellow employees could push the door open. When he did this, the door, being loose at the top, started to fall. When he was apprised of the door's falling, he tried unsuccessfully to get out of the way, and the door struck his back, causing permanent, complete paralysis below his waist. Defendant well knew that the tops of such boxcar doors often came loose in transit, being held after stopping merely by the pin in the latch of the door. Defendant was thus negligent in not inspecting the boxcar and in not informing plaintiff of the peril or either removing or repairing the door before plaintiff was placed in such a perilous position and in using a boxcar that was not designed to be opened by the force applied from a truck, either by steady pressure or ramming or bumping, the defendant knowing that such doors often become stuck and that this is the customary way the doors are opened.
To the complaint the defendant filed an answer, alleging as defenses the comparative and contributing negligence of the plaintiff and his employer in opening the door in an improper manner, the defendant's lack of ownership and possession of the boxcar at the time of the occurrence and its lack of knowledge that the door was in any way defective.
The third-party defendants moved to dismiss the third-party complaint on the following grounds: that defendant, while denying liability, prays for a judgment against said third-party defendants for any judgment which plaintiff may recover against defendant; that they have no liability for the defendant's negligence, nor, under the fellow servant rule, would the defendant be liable to the plaintiff; that the plaintiff, as an employee of the third-party defendants and subject to the Workmen's Compensation Act, could not, therefore, recover against his employer, directly or indirectly; and that the complaint states no claim.
The defendant filed a motion for summary judgment in its favor against the plaintiff, supported by the deposition of the plaintiff and affidavits of Dillard, Jr., Spence Lester (plaintiff's father and fellow employee), Otis Walker (another fellow employee) and T. C. Perkins (superintendent of defendant's car department). The first three affidavits stated substantially as follows: On the morning in question the weather was fair and it was daylight. Plaintiff and affiants were attempting to open the boxcar door in order to unload the sand therein. They were unable to open the door manually because of the weight of the sand behind it, so Dillard, Jr. stood on the left-hand side of the door and held a 2 x 6 board 4 or 5 feet in length between the rear of their pickup truck and the boxcar door, while the plaintiff stood in the middle of the door holding down its handle and Walker stood to the right of the door. Because the tires spun in the attempt to back the truck up, Dillard, Jr. had its driver, Spence Lester, pull forward about a foot to gain some momentum. On the first impact, the door was opened a few inches and on the second or third time it opened about 3 feet and fell completely off the top door track, rail or hanger and onto the plaintiff's back, the other men having been able to jump clear of the falling door. The plaintiff deposed as follows: He had been employed with the Dillard Coal Co. for 6 or 7 months prior to his injury, during which time he had daily assisted in the unloading of sand and the sanding of defendant's engines, together with the same crew as were working on the day of the accident. Dillard, Jr. kept a board in that vicinity, which they used to open stuck boxcar doors with their truck, which the plaintiff remembered happening only twice. On the day of the accident, all four of the men tried unsuccessfully to manually push open the door, which they had not previously opened. Plaintiff then held down the lever in the center of the door, as he usually did, which one of the other men held the board against the door. He never felt the truck move the door and "knew" that it did not because the board did not fall, as it always had done. He became aware that the door was falling only by the warnings shouted by the other men and as he glanced up he saw the door "coming straight down." Before the door fell he had looked at it, but had not examined it or paid attention to whether it was on or off. He had not removed the steel lever pin and didn't know who had. His opinion was that the cause of the door's falling was that it "wasn't on the track, it was stuck up," but he didn't know how it got loose and knew of no one who had any knowledge about anything being wrong with the door or its not being on its track. Affiant Perkins stated substantially as follows: He is familiar with the type of boxcar and door involved in the accident, which door is designed to be manually opened, not by force applied from a pick-up truck. That occasionally such doors resist manual opening, in which case the defendant's local freight agent will, upon request, furnish a described chain hoist, door-opening device and, if this is not effective, mechanical personnel, which procedure is customary as a company policy. In his opinion a board placed between the rear of a pickup truck and the bottom of the boxcar door would exert an upward pressure against the door which would be sufficient to spring the door off its track and this same effect would result even if the board was on a nearly horizontal plane, as some of the other affidavits indicated. In his opinion the door would not have fallen if it had been opened in the customary manner, i.e.: either manually or by chain hoist.
In opposition to the defendant's motion, the plaintiff filed objections to the affidavit of Perkins and filed affidavits of Spence Lester, Dillard, Jr. and himself. The plaintiff's affidavit stated that the sand inside the boxcar was not pressing against the door, none of it having fallen out when the door opened; that the pushing of the door by the truck did not knock it off its track because it moved it in only a horizontal direction; that the backing up of the truck against the door was not violent; that they had opened boxcar doors many times before in this way and that a door had never fallen off because of it. Spence Lester's affidavits stated that they had been servicing the defendant's trains for approximately two years, during which time they opened up one or two box cars of sand per month; that they had had to open the doors by use of their truck, with either a chain or a timber, in every case but one, during which and since which time he had never seen a door fall off; that the boxcar opened on the morning in question was a fresh car of sand, not previously opened by them; that he did not examine the top of either the boxcar or the door to determine how it came off and did not remember how it was fastened; that in his opinion the door was not knocked off by the means used to open it but fell off because it was not properly secured at the top. Dillard, Jr. 's affidavit stated, in addition to statements made in the preceding affidavits, that the plaintiff was employed by him and covered by workmen's compensation insurance on the day of the accident and had been drawing said insurance benefits ever since; that his statement in his earlier affidavit, that the weight of the sand against the inside of the door prevented the door's opening, was not accurate and did not mean that, but, rather that loose sand dribbled out of the bags and into the lower part of the door, causing friction, which kept the door from sliding easily.
Both of the latter affidavits stated that the defendant had never informed either them or their company that the defendant had any provision for opening stuck doors or that the company should contact anybody when a door could not be opened manually, and that, to the contrary, their custom was to open the doors by use of a vehicle.
Subsequently, the court entered an order overruling the defendant's objections to the plaintiff's affidavits; sustaining Grounds 4 and 5 of the plaintiff's objections to Perkins' affidavit and overruling the remainder of the grounds; overruling the defendant's motion for summary judgment; sustaining the motion to dismiss Counts 1 and 2 of the third-party complaint and overruling such motion with respect to Counts 3 and 4 thereof; making no ruling on the constitutional issues attempted to be raised in the third-party complaint; reserving any further ruling on defendant's motion to strike the motion to dismiss the third-party complaint as amended; and certifying the appealability of all rulings therein made. The defendant filed an appeal, and the third-party defendants filed a cross appeal from the rulings adverse to them in the above order.
1. The plaintiff's action is predicated upon the defendant's alleged negligence with respect to the door's (a) defective condition and (b) defective design. The deposition and affidavits on file show no evidence that the particular door in question was in a defective condition. All of the statements concerning its condition amount to mere conjecture and opinion, since no one claimed to have observed the allegedly defective condition prior to the door's fall. It appears that this was a fresh boxcar of sand which had just arrived the night before the accident and had not been opened. Evidently the door was operating at least properly enough at the time it was loaded to get it closed. The fact that it resisted manual opening is not evidence of any defective condition, since this was caused by the loose sand around the bottom of the door--a condition which was apparently very common. Nor does the fact that such doors were frequently or even customarily opened in the manner employed at the time of the accident indicate that this particular door must have been defective. There must always be a first time for any occurrence. Apparently, the various factors involved such as--the angle of the board, the amount and distribution of sand around the door, the degree of the impact against the door, for examples--here combined to derail the door, where they had not previously done so. There was testimony that the method employed was not that for which the door was designed and that it could and did cause it to fall off. The defendant was under no duty to redesign its doors to adapt then to a means of opening of which it did not approve and of which it may not even have had knowledge. Neither would it be required to notify each and every actual and potential opener of the doors of the proper method of opening stuck doors. Anyone using force to open such doors, rather than first consulting with the defendant's agents, to obtain either their permission or their assistance, must be considered as acting at his own peril.
The pleadings, together with the deposition and affidavits filed, exclude any negligence on the part of the defendant as the proximate cause of the plaintiff's injuries; therefore, the court erred in its judgment overruling the defendant's motion for summary judgment.
2. The cross appeal raises the question of whether or not the third-party complaint stated a claim against the third-party defendants. As this apparently is a case of first impression in our State courts, we shall quote from the case of O'Steen v. Lockheed Aircraft Corp., FSupp, N. Dist. Ga. (1965) (No. 11306), which decided substantially the same question against the third-party claimant.
"The courts of Georgia do not seem to have passed directly on this question, but as the court views the Federal Rule (14) and the Georgia law (which in this diversity case must control), the third-party complaint must fail for two reasons: first, the third-party complaint does not allege a claim which is cognizable under the present language of Federal Rule 14, and second, as against this defendant (the employer of plaintiffs' decedent),the claim is barred by the employer having previously paid workmen's compensation in connection with the same transaction.
"Under Rule 14 [upon which Code Ann. 81A-114 (a) (Ga. L. 1966, pp. 609, 627) is based] the requirements for the maintenance of a third-party proceeding have been stated as follows:
" 'Third-party practice in federal courts is governed by Rule 14, Federal Rules of Civil Procedure, 28 U.S.C.A. As originally promulgated in 1937, that Rule provided for the impleading of a person who is or may be liable to the defendant "or to the plaintiff" for all or part of the plaintiff's claim. This proved unworkable, and effective in 1948 the Supreme Court amended the Rule by striking out the quoted phrase. Thus as the Rule now reads, only a person who is secondarily liable to the original defendant may be brought in as a third-party defendants in cases of indemnity, subrogation, contribution or warranty.' 1 Barron & Holtzoff, Federal Practice & Procedure, Rules Ed., Ch. 7; Ohlinger's Federal Practice, Rev. Ed. Rule 14; 3 Moore's Federal Practice, 2nd Ed., 14.15.
"It follows that to maintain the third-party complaint, the present defendant must show that in some fashion the proposed third-party defendant 'is or may be . . . secondarily' liable to it. It also appears that the only way Knox [third-party defendant] could be secondarily liable is on one of the theories enumerated by Barron and Holtzoff. In other words, in order to recover on a third-party complaint, Lockheed [third-party plaintiff] must establish a right over against Knox either by indemnity (in tort or in contract, express or implied), subrogation, contribution or warranty.
"Of these, subrogation and warranty are not here involved, and we proceed first to the theory of indemnity. It is not contended that there was any express contract of indemnity given to Lockheed by Knox, nor can such contractual indemnity be implied, since Georgia courts never imply an agreement to indemnify another for one's own negligence in the absence of express language. Rome Builders Supply, Inc. v. Rome Kraft Co., 104 Ga. App. 488 (3)
; Batson Cook Co. v. Georgia Marble Co., 112 Ga. App. 226
"Nor can third-party plaintiff establish its right to indemnity under the Georgia law of torts. In the first place, the third-party complaint, both as originally filed and as amended, alleges in substance that the sole proximate cause of the death of plaintiffs' decedent was the negligence of R. F. Knox Company, his employer, and not the negligence of the original defendant, who is now the third-party plaintiff. Here, the third-party complaint alleges no relationship between Lockheed and Knox which under Georgia law would make Lockheed responsible to plaintiffs for the negligence of Knox, active or passive, and if this allegation is true--that is, if the negligence of the alleged third-party defendant was the sole proximate cause--then Lockheed has no right to indemnity from Knox, and needs none, since under this set of facts, assuming them to be true, Lockheed cannot be liable in any event.
"In making this statement, the court is familiar with those Georgia cases in which, by reason of statute or any agency relationship, a defendant who has been held vicariously liable for the negligence of a third person is allowed to enforce restitution or indemnity against such third party. (See Schneider v. Augusta, 118 Ga. 610 and G. S. & F. R. Co. v. Jossey, 105 Ga. 271.) But no such set of facts exists here. In Schneider the City, which was guilty of no active negligence whatsoever, was forced (under its statutory liability for defects in its streets) to pay damages to a third person who was injured by a defect not created by the City but by Schneider, who was operating under a City permit. In other words, that was a case where a statute made the City liable for someone else's negligence. Since the City, by statute, was liable to the public for injuries from defects in its streets, and since it had paid the person injured, it was allowed restitution against Schneider, for whose negligence it was legally responsible. In the same way, in the Jossey case, the Railroad, as a carrier, had been subjected to liability to a passenger because of the negligent and unauthorized action of its agent in losing the passenger's baggage. Having paid off the passenger, as was its statutory duty, it was allowed to indemnify itself from the employee for whose negligence it was legally responsible.
"Lockheed and Knox simply do not stand in any such special relationship with respect to each other. The whole theory of indemnity has been stated in the Restatement of the Law of Restitution, 76, p. 331, as follows:
" 'A person who . . . has discharged a duty which is owed by him but which as between himself and another should have been discharged by the other, is entitled to indemnity . . .' (Emphasis supplied.)
"Here, under Lockheed's allegation, it owes no duty because, first, it was not negligent, and second, because no circumstances are shown which would make it responsible for the negligence of Knox. The facts also make this principle inapplicable for another reason: the duty to the plaintiffs, if any, was not one which 'should have been discharged by' Knox. On the contrary, having already paid workmen's compensation to the plaintiffs, Knox positively owed no further duty in tort for which it could be liable to either them or Lockheed . . . [Footnote:] See also 42 C.J.S. Indemnity, 23, which states: 'To be entitled to recover indemnity from another for damages paid, it is essential that the latter be primarily responsible for the negligence or wrongful act which caused the injuries.' (Emphasis supplied.)
"It follows that the third-party complaint cannot be supported on the theory of indemnity.
"We come then to the question whether the third-party complaint might be sustained on the theory of contribution; and again it is clear that under Georgia law third-party plaintiff cannot prevail, even under Georgia's amended statute relating to contribution (Georgia Code 105-2012). This is true because that statute relates only to contribution among 'joint trespassers' (that is, joint tortfeasors), and the proposed third-party defendant cannot be made liable as a joint tortfeasor because it, as employer, has already paid workmen's compensation to the plaintiffs. See Williams Bros. Lumber Co. v. Meisel, 85 Ga. App. 72
"In line with these observations, it appears obvious to the court that what the third-party plaintiff really seeks is to tender the plaintiffs a substitute defendant. This cannot be done for the same reason; that is, having paid compensation for an injury to its employee one time, the third-party defendant cannot be liable again in tort (Georgia Code 114-103) and, moreover, the tender of a substitute defendant would seem to be prohibited by amended Rule 14 itself, which now prohibits third-party complaints where the liability of the proposed third-party defendant, if any, runs only to the original plaintiff rather than to the third-party defendant.
"In summary, this case seems very similar to the case of General Electric Co. v. Cuban American Nickel Co., [F2d] (5th Cir. No. 23008, decided February 7, 1968), where the Fifth Circuit reached a similar conclusion with respect to a third-party complaint under the laws of Louisiana, which appear to be substantially the same as those in Georgia. See also Pilgrim v. Southern Railway Co., [FSupp] Civil Action No. 1175 in this court, decided September 15, 1967; Plott v. J. A. Jones Construction Co., [FSupp] Civil Action No. 9574 in this court, and Cagle v. J. A. Jones Construction Co., FSupp, Civil Action No. 9575 in this court, both decided on July 25, 1966, where this court arrived at a substantially similar conclusion.
"The motion to dismiss the third-party complaint is granted."
The third-party complaint failed to state a claim for the reasons above-indicated in the O'Steen case; therefore, the court did not err in its judgment sustaining the motion to dismiss Counts 1 and 2 thereof and it erred in overruling said motion with respect to Counts 3 and 4.
Judgment reversed. Eberhardt and Whitman, JJ., concur.