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Oregon Shortline Railroad Companu, a Utah Corporation, and Union Pacific Railroad Company, a Utah Corporation V. Idaho Stockyard

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Oregon Shortline Railroad Companu, a Utah Corporation, and Union Pacific Railroad Company, a Utah Corporation V. Idaho Stockyard Brigham Young University Law School BYU Law Digital Commons Utah Supreme Court Briefs (cases filed before 1965) 1961 Oregon Shortline Railroad Companu, A Utah Corporation, and Union Pacific Railroad Company, A Utah Corporation v. Idaho Stockyards Company, A Utah Corporation : Brief of Respondents Follow this and additional works at: https://digitalcommons.law.byu.edu/uofu_sc1 Original Brief submitted to the Utah Supreme Court; funding for digitization provided by the Institute of Museum and Library Services through the Library Services and Technology Act, administered by the Utah State Library, and sponsored by the S.J. Quinney Law Library; machine- generated OCR, may contain errors.Bryan P. Leverich, A.U. Miner, Scott M. Matheson, and Gary L. Theurer; Attorneys for Plaintiffs and Respondents. Recommended Citation Brief of Respondent, Oregon Shortline v. Idaho Stockyards, No. 9405 (1961). https://digitalcommons.law.byu.edu/uofu_sc1/4744 This Brief of Respondent is brought to you for free and open access by BYU Law Digital Commons. It has been accepted for inclusion in Utah Supreme Court Briefs (cases filed before 1965) by an authorized administrator of BYU Law Digital Commons. For more information, please contact [email protected]. In the . e Court of the State of Ut,lt:~~ · • --1·~,,. F I L'· N SHORT LINE R~ROAD MAY 5~. l(PANY, a Utah Corporation, and .'. _,., ~,· N PACIFIC RAILROAD. COM:-- -----·------------..;;._,.,.. Supr-..;: !ANY a Utah Corporation, " ' Plaimtiffs and Bespofllilents, -vs.- STOCKYARDS COMPANY, Utah Corporation, Defendant and .A.ppellattt. -·.;; ''. BRYAN P. LEVERICH'·.''. · A. U. MINER <--~ :·· SCOTT M. MATHESOJl.,;<~· GARY L. THEURER, : ~:'- , ••$ 1......:. Attorneys for Plaintifli · ... · and Reepondent.a · · - TA Bl ,J•: OF CONTENTS Page r11rLT.\IINARY RTATP~MENT ------------------------------ 1 S'L\Tl·~~m~T OF Ji\\( "rs._______________________________________ 2 S'L\ TF,~fF~NT OF PCH NTR--------------------------------------- 6 ARUC\IFiNT -- ----------------- ------------------------------------------- 7 p!lI:\T J. UNDER THE EXPRESS INDEM- - ~ITY PHOVIHTON OF THE WRITTEN CONTRACT BETWEEN rrHE PARTIES, t:~lON I' ACLF'IC RAILROAD COMPANY IS ENTITLED TO INDEMNIFICATION FRO~f IDAHO STOCKYARDS COM- PAN'Y FOR THE AMOUNT PAID BY UNION PACIFIC IN SETTLEMENT OF ROBERT T. NELSON'S ACTION, TO- GE'l'HER WITH ALL REASONABLE COSTS AND EXPENSES INCURRED________ 7 POINT II. IN THE SETTLEMENT OF THE ACTION COMMENCED BY ROBERT T. NELSON AG AJNRT UNION PACIFIC RAILROAD COMPANY UNDER THE ~'EDJi~RAL EMPLOYERS LIABILITY ACT, THE HAILROAD COMP ANY ACT- ED REASONABLY, PRUDENTLY AND IN GOOD FAITH AND WAS NOT A VOLUNTEER ________ ------------------------------------------··· 16 COXCLPRION ___ ________________ ---------------··---------------------· 28 IN!lF.X OF CASES .\ND AUTHORITIES CITED ~\llt·H _\-s. ~outhrrn Pac'.ific Company, 117 Utah 11 l, 213 P. (2d) ()(ii ( 19GO )------------------------------------ 28 Allied, -\I utl1a · I(' aRua It y Corp. vs. General Motors toqi., 279 .B'. (2d) 455 (CCA-10, 1960)____________ 23 TABLE OF CONTENTS -- (Cont". lliuedi Bailey vs. Central Vermont Ry., 319 U. s. 350 63 Sup. Ct. 1062, 87 L. Ed. 1444 (1943) .. __ ' ,. 'l' Baker vs. Texas P. & R. Company, :359 U.S. 22i 79 Sup. Ct. 664, 3 L. Ed. (2d) 756 (1959) ..... ' Boeing Airplane Co. vs. Fireman's Fund In- demnity Co., 44 Wash. (2d) 488, 268 P. (2d) 654, 45 ALR ( 2d) 984 ( 1954) ···········-················· Boston vs. Old Orchard Business District, Inc., 26 Ill. App. (2d) 324, 168 N.E. (2d) 52 (1960) Bounougias vs. Republic Steel Corporation, 2ii F. (2d) 726 (CCA-7, 1960) ................................ Butz vs. Union Pacific Railroad Company, 120 Utah 185, 233 P. (2d) 332 (1951) ..................... 2: .. Chicago, Rock Island and Pacific Ry. Co. vs. United States, 220 F. (2d) 939 I ( CCA-7, 1955) .................................................. .19, ~~.·I Chicago, R. I. & P.R. Co. vs. Dobry Flour Mills, I 211 F. (2d) 785 (CCA-10, 1954) .................... ..lUL ! Cimorelli vs. New York Central R. Company, ! 148 F. (2d) 575; (CCA-6, 1945) .......................... ··! I Damanti vs. A/S Inger, 153 F. Supp. 600 (E. D. N. Y., 1957) ................................................. Dice vs. Akron, Canton and Youngstown R. Co., 342 U.S. 359, 72 Sup. Ct. 312, 96 L. Ed. 398 ( 1952) .................................... ···· Erie Railroad Company vs. Winfield, 244 U. S. 170, 37 Sup. Ct. 556, 61 L. Ed. 1057 (1917) ....... i Filtrol Corp. vs. Loose, 209 F. (2d) . ' 10 (CCA-10, 1953) ................................................. ' Gulf, Colorado & Santa Fe. Ry. Co. vs. McBride, :ll .. 322 S. W. (2d) 492 (Texas, 1958) ................... i _\ 1-.i F: o F t '0NT~~N'l1S - (Continued) Page .. \loirnt>ssell Southwestern Ry. Co., '· ·wi, I,. 945) .. - 1 ·1:i 1 "d) 400 ( CCA-:1, 1 ---------------------------- 27 1.. )• . \ ~ i • , .. \llnini-; Co. vs. Louisville & N. R. Co., . ''".~'-,. f•'\ ')"1 jl) \. ',),__ • 12:1 S. \V. (2d) 1055 (1938) ___________ _ 23 ,, :n•lll \~. lntrnsio11-Pr<'pakt, Inc., 24 Ill. App. " . (~'n :;::4, J65 N. E. (2d) 346 (1960)-------------------- 15 \,.11 y nrk ( 't:>ntral H. R. Co. vs. Winfield, 244 t. s l·i~, :-ri Sup. Ct. 546, 61 L. Ed. 10-!:i ( Hlll) ··-···--· ------------------------------------------------- 14 il'>"«ill \'s. K. & 0. R. Company, 348 U. S. 956, i:i Sup. CL 447, 99 L. Ed. 747 (1955) report- ed in 211 F. (2<l) mo, (CCA-6, 1954) _______________ _ 25 Ur0gDH-War-il1ington R. & Nav. Co. vs. Washing- ton Tire & R Company, 126 Wash. 565, 219 P. 9 (1923) -------- --------------------------------------------- 21, 22 l'ac-. Tl'lc-phone & Tel. Company vs. Pac. Gas & J1~lec. Co., 170 Cal. App. (2d) 387, ::l38 P. ( 2d) 984 ( 1959 )----------------·------------------------- 23 H1•cd YS. Pennsylvania R. Co., 351 U. S. 502, iti Sup. Ct. 958, 100 L. Ed. 1366 ( 1956 )------------ 27 Hiughiser \'S. Chesapeake & Ohio Ry. Company, :3:l4 F S. ~)01, 77 Sup. Ct. 1093, 1 L. Ed. (2d) 1~68, ( rni17) ____ ------------------------------------------------------- 25 lfoi.;crs \'R. Missouri Pacific R. Company, 352 l'. S. 500, 77 Sup. Ct. 443, 1 L. Ed. (2d) 4'.J:\ ( l:l57) ················---------------------------------------- 25 Hns~dl 1·s. C'ity of Idaho Falls 78 Idaho 466 ~():) l'. (2rl) 740 (1956) ______ '__________________ 11, i2, 13, 14, 24 !';Jiai~~~ vs. Dt>laware L_ & W. R. Co., 239 U. S. ;).>G. :~t1 Sup. Ct. 188, 60 L. Ed. 436 (1916) ________ 26, 27 :-.iiikl:r ;·s:,.\~is_:c;~nri Pacific R. Company, 356 T · :-:i. -i2b, 18 Hup. Ct 758, ~ l,, Ed ( 2d) 79~1 ( 1958) ---------------------------------------- 9, 25 TABLE OF CONTENTS-(Cont· .. lUUed) Southern Pacific Company vs. <lilEo, :j;-iJ l!. ~ 493, 76 Sup. Ct. 952, 100 L. l!Jd. l:lfti i l!rini Stern vs. Larocca, 49 N. J. Super 4~Hi 140 \ (2d) 403 (1958) ---------------- -----·- ----·..... , St. Louis-San Francisco Ry. Co. vs. Wacaster 210 Ark. 1080, 199 S. W. (2d) 948 (rn47): __ Thermopolis Northwest Electric Co. vs. Ireland, 119 F. (2d) 412, (CCA-10, 1941) .................... Ward vs. Atlantic Coast Line R. Company, 362 U. S. 396, 80 Sup. Ct. 789, 4 L. Ed. (2d) 820 ( 1960) ----------------------------------- ---- --------........... .. Western Development Company vs. Nell, 4 Utah ( 2d) 112, 288 p. ( 2d) 452 ( 1955) ·--------.............. Wilkerson vs. McCarthy, 336 U.S. 53, 69 Sup. Ct. 413, 93 L. Ed. 497 ( 1949 )-------······---------------.. TEXTS American Jurisprudence, Vol. 12, Contracts, Sec. 227 ------------------------------------------------···-·------......... STATUTES Idaho Code, Sec. 72-1008 ________________________________ .. __ .. ·.. Idaho Code, Sec. 72-1010 ____________________________________ ........ .. United States Code Annotated, Title 45, H.~ Sec. 51 et seq. -------------------------------------------------- .. 1' 5' . Utah Rules of Civil Procedure, Rule 43 (e).............. Utah Rules of Civil Procedure, Rule 56 (c) ............ In the Supreme Court of the State of Utah '·!!i:U1\ :-IHOHT LINl~~ RAfLROAD I 1 11\[P.\.\'Y. a l'tah Corporation, and l '\10.\1" PACJFlC RAILROAD COM- l'.\~Y. a l'tnh Corporation, Plaintiffs and Respondents, Case -vs. --- No. 9405 lil.\!!O ~TOCKYARDS COMPANY, :1 l 't;:li Corporation, Defendant and Appellant. BRIEF OF RESPONDENTS PRELlMTNARY S'rATEMENT \' 11 i~:-u(• of fad \ms raised in this case in the trial 1 '· \lrt othPr than thr amount of costs and expenses in- 11 0 ' rr d Ji.,- l 'niou Pacific in defending a third party action lll:rf .. r t!t(• FPdernl Employers Liability Act, 45 USCA, 11 ·' ·! <c··1 .• ~ornPtinH·s hen•inaftC'r called the FELA. There 110 •. ' 1 P\'l'I'. :-0111 .. variation between the parties as to \\!,:tt Hn· tliP 11111/erial tads of tlw case. Based upon this 2 consideration, we neither a<'<'l'llt a ·'l· · 1111 (I ,l]J\ '•I f1: th<~ :-:m1w. l:·itlir·i· ,, ment of facts nor rejed ( 111;1· ment to and delete therefrom WP li·i,·r· .. ' I ,.,.I 111 rt' brief what we consider the material fact~ ,,. 111 1 intf'ri·~t ,i . will be some duplication, but in tlw 1 and good order we have taken the liberty of n,i·: · a complete statement of facts. STATEMENT O:B, FACTS This is an action by Oregon Short Line Ha1]r Company and Union Pacific Hailroad Compan~· if .. : indemnity for Union Pacific from Idaho Stol'kr~· Company. Such indemnity is sought under a ~rr, provision of a written contract between the Tui1lr Companies and the Stockyards Company (R. ~. · Oregon Short Line is a party to the action bt'l'ac ... is a party to the agreement. However, the rrliPf ,, ..: is exclusively for the benefit of Union Pacific,
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