Lord & Taylor, Inc. v. Yale & Towne Mfg. Co.

• Decision Date: 07 December 1920
• Citation: 129 N.E. 346,230 N.Y. 132
• Parties: LORD & TAYLOR, Inc., et al. v. YALE & TOWNE MFG. CO.
• Court: New York Court of Appeals Court of Appeals

230 N.Y. 132

129 N.E. 346

LORD & TAYLOR, Inc., et al.

v.YALE & TOWNE MFG. CO.

Court of Appeals of New York.

Dec. 7, 1920.

Action by Lord & Taylor, Incorporated, and the Travelers' Insurance Company of Hartford, Conn., against the Yale & Towne Manufacturing Company. From a judgment of the Appellate Division, First Department (187 App. Div. 889,174 N. Y. Supp. 911), affirming a judgment of the Trial Term entered upon a verdict directed by the court in favor of defendant after a special verdict, plaintiffs appeal.

affirmed as to plaintiff Lord & Taylor, but as to plaintiff Travelers' Insurance Company reversed and new trial granted.

Collin, Hogan, and Elkus, JJ., dissenting.

Appeal from Supreme Court, Appellate Division, First Department.

Frank Verner Johnson, of New York City, for appellants.

Louis H. Porter, of New York City, for respondent.

POUND, J.

The plaintiff Lord & Taylor, Inc., when constructing its Fifth Avenue department store, contracted with defendant to install therein a coal handling system, to carry a bucket of coal from the coal bunkers to the boiler room by means of an I-beam track suspended by hangers from the structural steel of the boiler and bunker rooms. The bucket when filled with coal weighed about 850 pounds. Lord & Taylor, Inc., began to use this apparatus about the 1st of January, 1914. In the following May a part of the I-beam track separated from its hanger, causing a portion of the apparatus to fall on an employee named Fitzsimmons and injure him. He sued Lord & Taylor, Inc., alleging its negligence in failing to provide a safe place to work by installing an unsafe coal-conveying apparatus. It notified defendant to come in and defend the action, but defendant did not respond. Fitzsimmons obtained a judgment which was paid by plaintiff the Travelers' Insurance Company of Hartford, Conn., under the terms of a liability insurance policy. The insurance company thereupon became subrogated to the rights of the insured.

This action is brought to recover over against defendant on the ground that the Fitzsimmons accident was due to negligence on the part of defendant in failure to bolt the supports of the track in a safe and workmanlike manner. Defendant denied the allegations of improper or negligent construction. On the trial the judgment roll in the Fitzsimmons case was put in evidence.

Under the instructions of the court, it might be urged that the jury, in order to render a verdict in favor of Fitzsimmons, must have found both (a) faulty construction, in that the coal-conveying apparatus fell and injured plaintiff by reason of structural weakness and improper construction because it was ‘not constructed in such a way as to carry the weight resulting in one of the iron bolts breaking,’ and (b) that Lord & Taylor, Inc., was negligent after the apparatus was delivered to it and operation by it begun in failing properly to inspect the appliances and maintain them in a suitable and safe condition.

On examination of the record, however, it appears that faulty construction, the first element of negligence, was not litigated. The charge is not clear and wholly consistent on these points, the court having charged that the appliance, when installed, was ‘suitable and capable of doing the work for which it was intended.’ The record, taken as a whole, is susceptible of but one meaning, and that is that Lord & Taylor, Inc., ‘did everything in its power to furnish a safe and suitable appliance’ when it employed defendant to do the work. The attorney for Fitzsimmons conceded that ‘this thing was all right when it was put up,’ and no proof was offered of faulty construction by defendant.

[1][2] If defendant's negligence had been litigated in the Fitzsimmons case, instead of Lord & Taylor's own negligence, the plaintiffs herein not only might have invoked the rule, which is the basis of this action, that if another person has been compelled to pay the damages which the wrongdoer should have paid the latter becomes liable to the former (Dunn v. Uvalde Asphalt Paving Co., 175 N. Y. 214, 217,67 N. E. 439), but it also might have successfully maintained that, as the defendant had declined the opportunity to come in and defend itself, the Fitzsimmons judgment was res adjudicata on the question of defendant's fault. But the portions of the record in the Fitzsimmons case which were read in evidence on this trial indicate that the theory of the case was that Lord & Taylor, Inc., had a right to rely on defendant's judgment in the first instance as that of a reputable manufacturer installing a wellknown article put up ready for use; that although the trial justice inadvertently said that the jury must find negligence in construction in order to give Fitzsimmons their verdict, the substance of the judgment was the finding that after the system had been put up and operated, Lord & Taylor, Inc., was itself for the first time negligent in failing properly to inspect an appliance which was subjected to heavy and constant use. The primary wrong of this defendant was not litigated in the Fitzsimmons case, and it was neither bound nor exonerated by the judgment therein. The right of plaintiffs to recover against defendant in this action was not affected thereby.

The misconduct of Lord & Taylor consisted of a failure to discover by inspection a defect in an article specially made for it. On such negligence it was held responsible to Fitzsimmons. But it alleges in this action that it used the article in reliance upon the fact that it was made by a reputable maker for the use to which it was put. That fact did not excuse Lord & Taylor for failing properly to protect Fitzsimmons, but it could not compel him to litigate the negligence of this defendant in his action when he expressly declined to do so. Lord & Taylor may have been negligent as against its own servants and yet it may have shown all the care that defendant had a right to expect.

The rule is that--

‘If a party is obliged to defend against the act of another, against whom he has a remedy over, and defends solely and exclusively the act of such other party, and is compelled to defend no misfeasance of his own, he may notify such party of the pendency of the suit, and may call upon him to defend it; if he fails to defend, then, if liable over, he is liable not only for the amount of damages recovered, but for all reasonable and necessary expenses incurred in such defense.’ Inhabitants of Westfield v. Mayo, 122 Mass. 100, 109, 23 Am. Rep. 292;Consolidated...