Eureka Coal Co. v. Louisville N. R. Co. ( 1929 )

The bill rests the complainant's right to relief on the contract, made exhibit thereto, in which the appellant, in consideration of the privilege granted, stipulated "that the first party (Louisville Nashville Railroad Company), its officers, agents, tenants, or other companies operating its railroad, shall be by said second party saved harmless from and indemnified against any loss or damage of any kind, including costs and attorneys' fees, incident to or resulting in any way from any injury to person or damage to property growing out of the position or condition of said poles, wires or cables andsupports, or the operation of said light and power line." (Italics supplied.)

The damage, according to the averments of the bill, resulted from maintaining, in a negligent condition, telephone wires on the poles set on the complainant's property under the contract to hold the power line, and the holding of the majority seems to rest the equity of the bill on the fact that the contract did not contemplate the use of these poles for the telephone line. If this construction of the contract is sound, it necessarily follows that the contract is without influence to support the complainant's claim to equitable relief.

To my mind it is clear that stringing and maintaining the telephone wires on the poles designed for use in the maintenance of the power line was "incident to the conditions of said poles, wires, cables and supports," and the damage sustained by the complainant is clearly within the terms of the contract of indemnity, and that an action at law for the breach of the contract affords an adequate remedy. 3 Pom. Eq. Jur. (3d Ed.) § 1234; Moore v. Appleton, 26 Ala. 633.

Still, if it be conceded that the use of the poles for telephone lines was not within the contemplation of the parties, and damage resulting from their negligent maintenance is not covered by the contract, the use of the poles for that purpose was clearly a breach of duty growing out of or incident to the contract, and if damage resulted therefrom, it was at most an unauthorized and unwarranted use of the poles — a tort, for which an action on the case afforded an adequate remedy. Mobile Life Ins. Co. v. Randall, 74 Ala. 170; Moore v. Appleton, supra.

There is an absence of any element of equitable contribution, in fact the bill does not seek to compel contribution, but seeks a personal money judgment against the defendant for the damages sustained, collectable by execution on the judgment, and this character of relief, as a general rule, will not be granted by a court of equity. See Pom. Eq. Juris., supra.

To my mind the principles declared in Vandiver v. Pollak,107 Ala. 547, 19 So. 180, 54 Am. St. Rep. 118, are without application.

Nor can the bill be sustained as one for specific performance for the reason that the damage suffered by the Fords has been paid by the complainant, and there is no necessity of relieving the complainant from the burden of a cloud hanging over it arising from a liability on which it is not primarily liable. Segall v. Loeb, 218 Ala. 433, 118 So. 633; Thomas v. St. Paul M. E. Church, 86 Ala. 138, 5 So. 508; Tillis v. Folmar,145 Ala. 176, 39 So. 913, 117 Am. St. Rep. 31, 8 Ann. Cas. 78.

Therefore, viewing the case from every standpoint, the relief sought is a judgment for damage, for breach of contract — or for a breach of duty growing out of the contract in which an action at law affords a complete and adequate remedy rendering the bill as wanting in equity.

I am likewise out of accord with the holding that the bill presents the case in a double aspect, and of opinion that the court erred in overruling the demurrers to the bill, and that the case should be reversed. I therefore respectfully dissent.