Blair v. Cleveland Twist Drill Co., 10579.

• Citation: 197 F.2d 842
• Decision Date: 02 July 1952
• Docket Number: No. 10579.,10579.
• Parties: BLAIR v. CLEVELAND TWIST DRILL CO.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

197 F.2d 842 (1952)

BLAIR v. CLEVELAND TWIST DRILL CO.

No. 10579.

United States Court of Appeals Seventh Circuit.

July 2, 1952.

Francis X. Busch, James J. Magner, Chicago, Ill., for appellant.

James A. Dooley, William C. Wines, Chicago, Ill., for appellee.

Before KERNER, FINNEGAN, and LINDLEY, Circuit Judges.

KERNER, Circuit Judge.

This appeal is from an order striking and dismissing a cross-claim filed by appellant, the Railroad, against its co-defendant, the Drill Company, in a personal injury suit in which appellant's liability was predicated on the Federal Employers' Liability Act, 45 U.S.C.A. § 51 et seq., and appellee's, on the furnishing of a defective tool. The appeal raises questions relating to the construction and scope of Rule 13(g) of the Federal Rules of Civil Procedure, 28 U.S. C.A.

Plaintiff was employed by the Railroad as an electric lineman. According to his complaint, he was injured while working on the steel work of a catenary bridge, when a high speed drill he was operating burst and a fragment struck his eye causing permanent partial loss of vision. He charged negligence on the part of the Railroad in the operation and control of the drilling machine and catenary bridge, furnishing of a defective drill, failing to exercise ordinary care to provide a safe place to work, failing to provide a mask or goggles for his use, and adopting an unsafe and dangerous method for performing the work on which he was engaged. He charged negligence on the part of the Drill Company in manufacturing and supplying a drill which was defective and unsafe when used for the purpose for which it was intended, with knowledge of such purpose; failing to temper and inspect the drill; and selling a drill not reasonably fit for the purpose for which it was intended, thereby breaching its statutory warranty of fitness.

The Railroad filed answer admitting employment of plaintiff but denying all allegations of negligence on its part, and cross-claim (1) alleging that the drill involved was a new one, purchased from the Drill Company in reliance on its skill and judgment in the manufacture of such devices, and (2) repeating plaintiff's allegations of negligence on the part of the cross-defendant.

The Drill Company filed answer denying all allegations of negligence on its part. It also filed motion to strike the cross-claim on the ground that (1) the complaint alleged joint acts of negligence on the part of both defendants and that they were therefore joint tort-feasors, from which it followed that the cross-claim represented an attempt to obtain contribution which could not be had between joint tort-feasors, (2) the alleged negligence of the Drill Company was no defense to the Railroad's liability under the Federal Employers' Liability Act, and (3) the cross-claim was premature in that no liability had as yet been established against the Railroad.

In granting the motion to strike and dismissing the cross-claim the court stated that "it does not belong in this lawsuit. * * * You might have a right of action, if there is a recovery, against the other defendant — you may have a right in another lawsuit. Here they are charged as tortfeasors." The order provided that the dismissal was "without prejudice to such rights, if any, as the cross-complaint may have after the disposition of the principal action; * * *" Upon a finding that there was no just reason for delay in the entry of judgment disposing of the cross-claim, the court directed that this judgment be entered accordingly and that the "above and foregoing order stand as a final judgment dismissing said cross claim * * * for the purposes of this the above entitled proceeding."

Rule 13(g) provides as follows:

"A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or * *. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant."

Since it appears from this rule that the Railroad is entitled to file its cross-claim if the Drill Company "is or may be liable" to it, we think that is the first question presented on this appeal. Obviously, if the first contention of the Drill Company, asserted in its motion to strike and dismiss, that there can be no contribution between joint tort-feasors, is valid, then the Railroad is not entitled to the relief prayed under Rule 13(g).

This question was fully discussed in Gulf, Mobile & Ohio R. Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148, 98 N.E.2d 783. That case also involved a claim arising out of the Federal Employers' Liability Act. Plaintiff, the railroad, after due notice to the defendant whose negligence, plaintiff contended, was responsible for the injury, settled the claim by the payment of $15,000 to its injured employee. It filed suit for the full amount of the settlement. According to the authorities there cited and discussed, it appears to be fully established that there is a right of action on implied indemnity where liability under the...