American District Telegraph Co. v. Kittleson

• Decision Date: 07 March 1950
• Docket Number: No. 14007.,14007.
• Parties: AMERICAN DISTRICT TELEGRAPH CO. v. KITTLESON et al.
• Court: U.S. Court of Appeals — Eighth Circuit

179 F.2d 946 (1950)

AMERICAN DISTRICT TELEGRAPH CO. v. KITTLESON et al.

No. 14007.

United States Court of Appeals Eighth Circuit.

February 14, 1950.

Rehearing Denied March 7, 1950.

Jno. A. Senneff and Earl Smith, Mason City, Iowa (Robert L. Bliss and C. F. Beck, Mason City, Iowa on the brief), for appellant.

R. F. Clough, George D. Dunn, and Ray E. Clough, Mason City, Iowa, for appellees.

Before SANBORN, WOODROUGH, and RIDDICK, Circuit Judges.

RIDDICK, Circuit Judge.

The appellee Kittleson was employed by the appellee Armour & Company in its packing plant at Mason City, Iowa. In the course of his employment he was severely injured when an employee of the appellant, American District Telegraph Co., fell through a skylight in the roof of the building in which Kittleson was working, landing on Kittleson. At the time of the accident American, under a contract with Armour, was repairing an automatic signal system in operation in the Armour plant, and two of its employees were engaged in this work on the roof of the Armour building.

Under the Iowa Workmen's Compensation Act, §§ 85.1-85.69, I.C.A., Armour became liable to Kittleson in the amount provided by the Act and has discharged that liability. Also under the Iowa Workmen's Compensation Act Kittleson became entitled to sue American to recover damages for his injuries, on the ground that his injuries were caused by the negligence of American's employee; and, in the event of Kittleson's recovery in the action against American, Armour became entitled to reimbursement out of the sums recovered by Kittleson to the extent of Armour's payments to him under the Iowa Compensation Act.

Kittleson brought this action against American charging negligence of its employee Cunningham, who fell through the skylight, in failing to exercise reasonable care to ascertain whether the skylight would support his weight before attempting to walk across it. The action was filed in an Iowa State court and removed to the Federal court because of diversity of citizenship. The Federal court granted leave to American under Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A., to file a third party complaint against Armour.

In its answer to Kittleson's complaint, American denied the allegations of negligence on the part of its employee Cunningham; and, in its third party complaint, alleged that Kittleson's injuries were caused by the primary negligence of Armour, and asked for judgment over against Armour for the amount of any judgment recovered against it in Kittleson's action. American alleged that the skylight in the roof of the building through which its employee Cunningham fell was constructed of corrugated glass on which Armour had allowed dirt and dust to accumulate, so that the real character of its construction and composition was not different in appearance from that of other parts of the roof, which its employees were required to traverse in the performance of the contract between American and Armour for the repair of the signal system, and that its character as a skylight was not discoverable by the exercise of ordinary care on the part of American's employees. The third party complaint further alleged that Armour had failed in its duty to furnish a safe place for American's employees to work in the performance of the contract for the maintenance of the signal system, and failed to warn the employees of American of the hidden hazard created by the presence of a disguised skylight in the path of their work on the roof of the building.

Both Armour and Kittleson moved to dismiss the third party complaint on the ground that liability of Armour for the injuries to its employee Kittleson in the course of his employment was covered exclusively by the Iowa Workmen's Compensation Act, contending that to permit a judgment in favor of American against Armour would be to add to the liability of Armour for Kittleson's injury, limited by the Iowa Compensation Act, and to destroy Armour's right under the Act to indemnity from American for compensation payments made by Armour to Kittleson.

The District Court sustained the motion to dismiss in advance of the trial on the merits and without taking testimony, but delayed the entry of its order of dismissal until the entry of final judgment disposing of the action of Kittleson against American in order that the order of dismissal might be a final judgment reviewable by this court if Kittleson was successful in his action against American. See Baltimore & O. R. Co. v. United Fuel Gas. Co., 4 Cir., 154 F. 2d 545, 547; Carlisle v. S. C. Loveland Co., 3 Cir., 175 F.2d 418.

While in the opinion of the District Court on the motion to dismiss the third party complaint the right of contribution as between joint tort-feasors under Iowa law is said to be involved and is discussed, it is apparent from the following quotation from the opinion that the third party complaint was dismissed because of the District Court's conclusion that the third party action could not be maintained because of the provisions of the Iowa Compensation law. The court said:

"* * * If the contentions of the Telegraph Company were to be sustained, it would eliminate the right of indemnification or subrogation given Armour & Company under the Act.

"To imply an agreement on the part of Armour & Company to pay the American District Telegraph Company the amount of the plaintiff's recovery against the Telegraph Company would be in effect to write an exception into Section 85.3¹ of the Iowa Compensation Act which states that the employer `shall be relieved of other liability * * * for such personal injury.' To imply an agreement on the part of Armour & Company to pay the American District Telegraph Company the amount of the plaintiff's recovery against the Telegraph Company would also in effect strike out and cancel that portion of Section 85.22² of the Act providing for subrogation or indemnification of an employer where a third party wrongdoer is legally liable in damages to the injured employee."

The third party complaint having been dismissed, the action of Kittleson against American proceeded to trial, terminating in a jury verdict in favor of Kittleson on which judgment was entered on the 14th day of February, 1949. On the same day the court entered its order dismissing the third party complaint. The motion of American for a new trial, assigning error in the dismissal of its third party complaint and in the charge of the court to the jury in the trial of the action of Kittleson against American, was denied, and within due time American filed its notice of appeal to this court, the peculiar phrasing of which presents at the threshold of this case the question of jurisdiction of the appeal from the order dismissing the third party complaint.

The notice of appeal is addressed to Ray Kittleson, and to Ray F. Clough, Ray E. Clough, and George D. Dunn, his attorneys, and is as follows: "You, and each of you, are hereby notified that the American District Telegraph Co., the defendant named in the above and foregoing cause of action, does hereby appeal to the Circuit Court of Appeals for the Eighth Circuit from the final judgment entered in the above entitled cause on the 14th day of February, A. D. 1949, and from the order and judgment entered in said cause on the 28th day of March, A. D. 1949, denying and overruling the motion of the defendant for a new trial."³

The contention of Armour that the notice of appeal was addressed only to the judgment in the action of Kittleson against American, and that therefore the order of the court dismissing the third party complaint is not before this court for review, was presented for the first time at the argument on the submission of this appeal. The point is not mentioned in the joint brief filed on behalf of Kittleson and Armour. On the contrary, the counsel who represented Armour in the trial court appear here on the brief representing Armour as appellee. The major portion of the brief is devoted to argument sustaining the order dismissing the third party complaint. In the statement of points filed by the appellant American in the District Court in connection with the preparation of the record on this appeal, error is assigned in the order dismissing the third party complaint, and the error in that respect was set out at length in appellant's motion for a new trial in the District Court, where on the hearing on the motion for a new trial the question was argued orally and upon written briefs for the respective parties. It seems apparent that all parties accepted the notice of appeal as sufficient to bring up for review the court's order dismissing the third party complaint, as well as the judgment in favor of Kittleson against American. We think the interpretation placed upon the notice of appeal by the parties in interest should be adopted by this court. There was in fact but one proceeding below, which indeed is the purpose sought to be accomplished by third party practice. The expressed intention of the trial court in reserving entry of the order on the motion to dismiss the third party complaint until final determination of the action of Kittleson against American was to preserve the right of appeal. The notice of appeal was addressed to counsel representing Armour as well as to counsel representing Kittleson. We hold that the whole case is before us for review, and proceed to a consideration of the questions raised on the record.

For reversal of the judgment in the action of Kittleson against American the sole error assigned concerns the court's charge to the jury. In Instruction No. 6 the court charged with reference to the duty of Armour to furnish a safe place for the employees of American to work, as follows: "You are instructed that if you find that the condition of the skylight in question did present a hidden defect, danger, or pitfall to persons using the roof, and Armour & Company knew or in the exercise...