Aetna Freight Lines, Inc. v. R. C. Tway Co.

• Citation: 352 S.W.2d 372
• Parties: AETNA FREIGHT LINES, INC. et al., Appellants, v. R. C. TWAY COMPANY, Inc., Doing Business as Kentucky Manufacturing Company, Appellee.
• Decision Date: 22 November 1961
• Court: United States State Supreme Court (Kentucky)

Page 372

352 S.W.2d 372

AETNA FREIGHT LINES, INC. et al., Appellants, v. R. C. TWAY COMPANY, Inc., Doing Business as Kentucky Manufacturing Company, Appellee.

Court of Appeals of Kentucky.

Nov. 22, 1961.

Rehearing Denied Jan. 19, 1962.

Stanley B. Mayer, Louisville, for appellants.

Charles I. Dawson, Bullitt, Dawson & Tarrant, Louisville, for appellee.

CULLEN, Commissioner.

Aetna Freight Lines, Inc., and Paul Fellabaum, appellants, seek reversal of a summary judgment in favor of R. C. Tway Company, Inc., doing business as Kentucky Manufacturing Company.

The pertinent facts are quoted from the opinion on the first appeal of this case, Aetna Freight Lines v. R. C. Tway Company, Ky., 298 S.W.2d 293, 294, 62 A.L.R.2d 480, as follows:

'Fellabaum purchased a tractor trailer (a 'train' consisting of two trailers connected by a drawbar) from an Ohio dealer who had bought the trailer from Tway, the manufacturer. Fellabaum leased the 'train' to Aetna, a contract carrier operating in Ohio and adjoining states. On June 11. 1949, after it had been used approximately four months and had run some 17,000 miles, the 'train' was involved in an accident in Ohio which resulted when the drawbar broke, permitting the 'train' to cross the road and collide with an approaching car.

'Three passengers in the car were killed and two were seriously injured. Shortly after the accident, five suits were filed in Ohio against Fellabaum, Aetna, and Harr, the driver of the trailer,--three by the administrators of the estates of the deceased, and two by the injured persons.'

Appellants settled the suits before trial and then sued Tway to recover indemnity. They pleaded lack of negligence on their part and alleged that the accident was the result of Tway's negligent manufacture of the drawbar and safety chain. Tway denied negligence. The proof submitted by appellants on the motion for summary judgment established an absence of negligence on their part. It is so conceded in the brief for Tway.

On the prior appeal, a summary judgment in favor of Tway (which had been granted on the ground that the plaintiffs were not the real parties in interest) was reversed. Upon remand, the trial court was directed to permit Tway to renew his motion for summary judgment on the ground that appellants were not liable to the victims of the accident. Regarding this ground the opinion said: 'Unless the plaintiffs * * * are able to show something more than is presently in the record to indicate a material issue of fact on the question of their legal liability to the injured claimants with whom they settled, and whether their negligence giving rise to such liability was secondary and passive, in relation to the primary and active negligence of Tway, the court will sustain the motion for summary judgment.' See Aetna Freight Lines, Inc. v. R. C. Tway Company, Ky., 298 S.W.2d 293, 297, 62 A.L.R.2d 480.

The holding on the first appeal became the law of the case unless appellants were able to show 'something more than is presently in the record to indicate a material issue of fact.' Copley v. Craft, Ky., 341 S.W.2d 70. In an effort to do so, appellants, in an amended complaint, alleged that the injuries sustained were the result of Tway's primary and active negligence; that the doctrine of res ipsa loquitur would have applied in the suits brought against appellants in Ohio; and that appellants were thereby liable to the claimants with whom they settled by operation of law for secondary and passive negligence. The affidavit of an Ohio attorney was filed, stating the effect of the Ohio res ipsa loquitur rule. Summary judgment in favor of Tway was again rendered.

In sustaining the second motion for a summary judgment, the trial court noted that the amended pleading with supporting affidavit 'raises no facts or issues except res ipsa loquitur.' Other than the amending pleading and affidavit, the same record as was considered on the first motion for summary judgment was presented.

The appellants' contention appears to be that it was sufficient for them to show that there was a reasonable possibility that they would have been held legally liable in the actions against...