Ryan Mercantile Company, a Corporation v. Great Northern Railway Company, a Corporation

On July 22, 1954, the Great Northern Railway Company, a Minnesota corporation, leased to the Ryan Mercantile Company, a Montana corporation, certain real property located in Great Falls, Montana. The lease was to run for a term of twenty years, and the property leased is described in the written instrument as follows:

The lease also contains provisions requiring Ryan, under certain circumstances, to indemnify Great Northern against claims for damages and to appear and defend any suits brought against Great Northern on account of any such damage claims. These provisions read as follows:

On December 31,1958, Evelyn Burditt, the wife of an employee of Ryan, was injured while riding in a car being driven by her husband when the car was struck by a boxcar being pushed by a switch engine owned and operated by Great Northern. The accident occurred on the right of way described in paragraph 2 (A) (2) of the agreement. Mrs. Burditt brought suit against Great Northern alleging that it was negligent in that no bells, warning lights, whistles, gongs, or other warning devices were given, all in violation of Section 72-219 of the Revised Codes of Montana, 1 and that there *632 was no watchman…

(dissenting).

Mrs. Burditt’s claim and suit are not covered by the indemnity agreement for at least two reasons: (1) The place of the accident on the described right of way was not a part of the leased premises; (2) the accident and the injuries resulting therefrom did not in any manner arise or grow out of the business conducted by Ryan on the leased premises, or the use or occupancy thereof by Ryan, or by other persons at Ryan’s instance or with Ryan’s consent or knowledge.

The indemnity clause with which we are here concerned is as follows:

Both the lower Court and the majority of this Court rely as a basic reason for their conclusions that the right of way granted by Great Northern to Ryan is a part of the leased premises on the fact that the right of way was described in the lease under the heading “Premises”

Judge Jameson, in his opinion, R. 61, 62, 186 F.Supp. 660, 663 , on this subject, stated:

The majority say:

The reliance upon the circumstances that the right of way is described under the title “Premises” disregards or minimizes other equally important provisions of the lease. Note the language of Paragraph 2(A) (1) of the lease:

And consider and compare the same…

294 F.2d 629 RYAN MERCANTILE COMPANY, a corporation, Appellant, v. GREAT NORTHERN RAILWAY COMPANY, a corporation, Appellee. No. 17161. United States Court of Appeals Ninth Circuit. August 30, 1961. Anderson, Symmes, Forbes, Peete & Brown, Billings, Mont., Weymouth D. Symmes, Billings, Mont., of counsel, for appellant. Weir, Gough & Booth, by Edwin S. Booth, Ward A. Shanahan and Cordell Johnson, Helena, Mont., for appellee. Before CHAMBERS and HAMLIN, Circuit Judges, and FOLEY, District Judge. HAMLIN, Circuit Judge. 1 On July 22, 1954, the Great Northern Railway Company, a Minnesota corporation, leased to the Ryan Mercantile Company, a Montana corporation, certain real property located in Great Falls, Montana. The lease was to run for a term of twenty years, and the property leased is described in the written instrument as follows: 2 "2. Lease: 3 "(A) Premises: 4 "(1) Great Northern leases, lets, and demises to Ryan those certain premises situated in Great Falls, Cascade County, Montana, located and bounded as indicated by a red line on Exhibit `A' attached hereto and made a part hereof, together with all buildings and improvements, specifically including a building labeled…