This is аn action for damages filed in the state court by appellant, C. A. Thomas, against the appellee, Atlantic Coast Line Railroad Company. The case was rеmoved to the federal court, and on motion .of the defendant in the court below the action was dismissed and plaintiff has appealed.
The facts disclosed by thе pleadings, which are material for consideration on this appeal are substantially as follows:
That on the afternoon of February 20, 1951, a freight train of the appellee railroad was parked at the railroad depot in the town of Lake Harbor, Florida; that at said time and place, the members of the train crew did, in a grоss,' willful and wantonly negligent manner, and with reckless disregard of appellee’s duty to protect appellant against injury, and with an intention to invade a legally proteсted interest of the appellant, build, kindle, and set fire to a pile of debris in close proximity to the building occupied by appellant which was adjacent to the rаilroad track; that with further reckless disregard of appellant’s property, the crew left the fire burning and departed from the scene without extinguishing it; that as a consequеnce, and as a proximate result of the aforementioned acts, the fire spread to a point where it endangered appellant’s property; and furthеr, that when the spread of the fire was brought to the attention of appellee’s depot agent, he remained passive and was dilatory in reporting or remedying thе situation despite the imminent danger to appellant’s property and that as a result, the building caught fire and was destroyed together with its contents.
Prior to the destruction of the property, appellant had leased from appellee a portion of its land for the purpose of maintaining a building formerly used as a packing hоuse. The lease-contract is made an exhibit to appellant’s complaint, and provides that the annual rental shall be the nominal sum of $60 per year. Omitting others, not here necessary to mention, this lease contained the following stipulation:
“Third: That Lessee shall and will indemnify and save harmless Lessor, i't successors and assigns, against any аnd all claims, demands, suits, judgments and sums of money accruing to Lessee or to any person or persons against Lessor, for the loss of or damage to said building, its contents or аny property placed on or stored in the said premises, whether the same is the result of fire caused by negligent emission of sparks from the locomotive engines оf Lessor, or otherwise, however resulting.”'
Appellee relied upon this stipulation in the contract as exempting it from liability on account of the destruction of the property by fire, and its motion to dismiss setting up such defense was sustained. The propriety of the trial court’s action in dis *169 missing the complaint and entering judgment for appellee is the sole question presented on this appeal.
The contract was made in and was to be performed in Florida. It is, of course, to be governed by Florida law. Erie Railroad Co. v. Tompkins,
It is the general rule that where the indemnity is not contracted for from an insurance company whose business it is to furnish indemnity for a premium under a contraсt, but is from one not in the indemnity business and as an incident of a contract whose main purpose is something else, the indemnity provision is construed strictly in favor of the indemnitor. Halliburtоn Oil Well
Cementing Co.
v. Paulk, 5 Cir.,
The appellant contends that the principle of construction known as
ejusdem generis
should be аpplied in determining what is included in the clause, “whether the same is the result of fire caused by negligent emission of sparks from the locomotive engines of Lessor, or othеrwise, however resulting”, and that the application of that rule would require a holding that the indemnity provision would cover only such loss, damage or injury as was occasioned by fire from negligent emission of sparks from locomotive engines, or kindred causes such as smoke, water, etc., negligently emitted from locomotive engines. With this contеntion we cannot agree. See Franklin Fire Ins. Co. v. Chesapeake & O. Ry. Co., 6 Cir.,
We do not at all agree with appellee’s contention that the indemnity provision was intended to apply to cases including willftfl оr wanton negligence. We find no language therein that is so clear and explicit as to compel a conclusion that the parties intended to exculpatе the railroad from the consequences of its own willful or wanton negligence. But conceding
arguendo
that the contract should be construed precisely as appellеe contends, we do not see how appellee’s position would be helped thereby. For if it could be said that the lease agreement did propose to exempt the railroad from liability for the consequences of a willful breach of duty it would, to that extent be illegal. Cf. Ringling Bros-Barnum & Bailey Combined Shows, Inc. v. Olvera, 9 Cir.,
The complaint is susceptible of the construction that the appellee railroad was guilty of willful or wanton negligence. The sharp and techniсal condemnation of pleadings that once obtained does not now exist. 2 Cases are generally to be tried on their proofs rather than the pleadings and there was no justification for dismissing the complaint on the merits unless it appeared to a certainty that the plaintiff would not be entitled to any relief under any state of facts which could be proved in support of the claim. The test is whether the complaint, construed in the light most favorable to the plaintiff and with every intendment resolved in his fаvor, is sufficient to constitute a valid claim.
The facts as set out in the complaint may prove to be such as to constitute willful or wanton negligence, and again they mаy not. This furnishes a question to be heard on the merits and the court erred for dismissing the cause of action on the pleadings.
The judgment of the District Court is reversed and the cause is remanded for further proceedings in conformity with this opinion.
Reversed and Remanded.