Bartlett v. Davis Corp.

• Court: Kansas Supreme Court
• Writing for the Court: KAUL
• Citation: Bartlett v. Davis Corp., 219 Kan. 148, 547 P.2d 800 (Kan. 1976)
• Decision Date: 06 March 1976
• Docket Number: No. 47868,47868
• Parties: Louis BARTLETT, father, and heir at law, of Dean L. Bartlett, Deceased, et al., Plaintiffs, v. DAVIS CORPORATION, Appellant. Marinus HEERSCHE, d/b/a Wichita Big River Sand Company, Appellee, v. IOWA MUTUAL INSURANCE COMPANY OF DeWITT, IOWA, a corporation, et al., Appellees.

Page 800

547 P.2d 800

219 Kan. 148

Louis BARTLETT, father, and heir at law, of Dean L.

Bartlett, Deceased, et al., Plaintiffs, v. DAVIS CORPORATION, Appellant.

Marinus HEERSCHE, d/b/a Wichita Big River Sand Company, Appellee, v. IOWA MUTUAL INSURANCE COMPANY OF DeWITT, IOWA, a

corporation, et al., Appellees.

No. 47868.

Supreme Court of Kansas.

March 6, 1976.

Syllabus by the Court

1. When a second appeal is brought to this court in the same case, the first decision is the settled law of the case on all questions involved and decided in the first appeal and reconsideration will not be given to such questions. However, when this court, upon appeal, merely reverses a district court in connection with its ruling on a motion to dismiss or for summary judgment, and no judgment is directed the effect of the decision of this court is the same, for purposes of further proceedings in the district court, as if the district court had made the correct ruling in the first instance.

2. A contract of indemnity is construed in accordance with the general rules for the construction of contracts. The cardinal rule is to ascertain the intention of the parties and to give effect to that intention if it can be done consistently with legal principles.

3. It is a general rule that a contract of indemnity will not be construed to indemnify the indemnitee against losses resulting from his own negligent acts unless such intention is expressed in clear and unequivocal terms, or unless no other meaning can be ascribed thereto.

4. While the intent to indemnify against the results of an indemnitee's negligence must be clear it is not necessary that an indemnity agreement contain specific or express language covering, in so many words, an owner's negligence if the intention to afford protection clearly appears from the contract, the surrounding circumstances and the purposes and objects of the parties.

5. In an action by a landowner seeking indemnification from a lessee-gravel pit operator, under an indemnity agreement, for a loss occasioned by failure to comply with a city fencing ordinance, the record is examined and, for reasons stated, it is held: The contract clearly and unequivocally provided for indemnification of the landowner in the precise circumstances shown to exist.

Fred A. Beaty, Wichita, argued the cause and was on the brief for appellant.

Richard C. Hite, Wichita, argued the cause and was on the brief for R. C. Sugden, Sugden Ins. Agency, and Ins. Services of Kansas, Inc., appellees.

H. E. Jones, Wichita, argued the cause and was on the brief for Iowa Mut. Ins. Co. of DeWitt, Iowa, appellee.

George D. McCarthy, Wichita, was on the brief for Marinus Heersche, appellee.

KAUL, Justice:

This is an action for indemnity arising from a judgment for damages for the wrongful death of plaintiffs' decedents, two young boys who drowned in a sand and gravel pit owned by appellant Davis Corporation (hereafter referred to as Davis) and operated by Marinus Heersche, d/b/a Wichita Big River Sand Company (hereafter referred to as Heersche). The wrongful death judgment against Davis and Heersche was affirmed by this court in Bartlett v. Heersche, 204 Kan. 392, 462 P.2d 763, which will be referred to as the Bartlett case. Encompassed in the Bartlett appeal was an appeal by Davis from a trial court ruling dismissing its cross petition against Heersche for indemnity. After judgment was entered in the Bartlett case, Heersche filed a third party complaint bringing in his insurer, the Iowa Mutual Insurance Company of DeWitt, Iowa, and also Iowa's general insurance agents in Kansas-R. C. Sugden, Sugden Insurance Agency, Inc., and Insurance Services of Kansas, Inc.

In the Bartlett appeal, in addition to affirming the wrongful death judgments against Davis and Heersche, this court reversed the trial court's ruling dismissing Davis's cross claim for indemnity against Heersche. Thereafter the indemnity question framed by Davis's cross petition was presented to the trial court which ultimately determined that Davis was not entitled to indemnity. Davis has appealed from that ruling.

The background facts are recited in detail in the Bartlett opinion and need not be repeated except for those matters directly related to the issues presented in this appeal.

The paramount issue before us in the Bartlett appeal was whether the trial court erred in failing to find that an attractive nuisance did not exist as a matter of law. In our opinion in Bartlett the trial evidence was considered and cases of this court dealing with the application of the attractive nuisance doctrine were reviewed. The gist of our decision was expressed in these words:

'In the instant case sufficient evidence was presented to sustain a finding by the jury that an attractive nuisance existed on the appellant's premises, and by reason thereof the appellants were obligated to exercise ordinary care in maintaining a fence required by the ordinance. Once it is established that an attractive nuisance exists to the satisfaction of the jury, simple negligence on the part of the appellants in failing to maintain an adequate fence as required by the ordinance would be sufficient to impose liability upon both the operator of the premises and the owner of the premises by virtue of the specific provisions of the ordinance.' (p. 399, 462 P.2d p. 769.)

The ordinance referred to was Witchita Ordinance No. 27-273, which provides in substance that it is unlawful to operate or maintain a sand or gravel pit within the city unless certain conditions of public protection were established and maintained. Included in the conditions specified was a good and sufficient fence constructed as specified by the ordinance and completely enclosing the sand or gravel pit. The ordinance specifies a V-mesh wire or chain link fence fifty-eight inches high or forty-two to forty-eight inches in height, with two or more strands of barbed wire. The evidence disclosed a V-mesh wire fence had been constructed, but had been 'mashed down' at one point so that it could be stepped over and at another point had been cut leaving an opening approximately twelve feet wide.

On March 1, 1964, Davis and Heersche executed an agreement entitled 'Grant of Right to Remove Sand and Gravel.' The agreement gave Heersche the exclusive right to enter upon and occupy the premises for the purposes of removing sand and gravel for a period of two years and further provided that any holding over after the expiration of the agreement would be on a month-to-month basis. Heersche agreed to perform at his sole cost all labor necessary and to provide the proper and necessary equipment for the removal of sand and gravel. Section five of the contract is in the form of a 'hold harmless' agreement the interpretation of which is the central issue in this appeal.

In its cross petition against Heersche, Davis alleged that by reason of the agreement, defendant Heersche 'agreed to indemnify and save harmless Davis Corporation from all claims, liabilities and obligations by reason of Heersche's operation on and occupancy of the premises herein involved' and that in the event a judgment is entered against it, Davis is entitled in that amount from defendant Heersche.

The cause presented by the cross petition was tried commencing on March 15, 1971. Pretrial orders and the transcript of the original trial were offered in evidence. Lawrence R. Davis, an officer of Davis, testified that as a result of the judgment in the Bartlett case he had paid into court the sum of $29,538.63, which was equal to one- half of the total Bartlett judgment, and that the money used was a loan from Home Insurance Company to be repaid to the extent Davis recovered from Heersche in the action being tried. Lawrence Davis further testified that when the ordinance requiring sand and gravel pits to be fenced was passed there was a conversation among himself, his father and Mr. Heersche and that a decision was made to comply with the ordinance; that Davis would purchase material for the fence and Heersche would install it and maintain it on a continuous basis. As we have noted, a V-shaped mesh wire fence was constructed, but had been mashed down at one point and cut at another. The record does not disclose when or by whom the fence was constructed.

Heersche offered no evidence in the trial on the cross petition, but rested his case upon the completion of Davis's evidence. At this point Davis moved for a directed verdict. The trial court sustained the motion of Davis stating:

"This is a contract case and the issues boil down to whether or not there is an indemnity only if liability or obligation results from the negligence of Heersche, or whether or not indemnity results merely by reason of the fact that a liability or obligation results from Heersche's operation and occupancy of the premises in question. The contract does not limit indemnity to negligence on the part of Heersche, but calls for indemnity upon the event of any liabilities which might occur on the premises by reason of the fact that it is occupied, operated by the defendant Heersche.

"The plaintiffs (defendant Davis Corporation's) motion for judgment is sustained."

At this point, the trial court severed Heersche's third party petition against his insurer and agent from the cross petition indemnity trial and directed that the judgment entered in the cross petition trial would not be effective until the conclusion of the litigation on the third party petition.

Thereafter, Heersche filed a motion for a new trial or in the alternative for alteration of the judgment. After hearing arguments on October 4, 1971, the court overruled the motion of Heersche in toto and entered judgment for Davis in the amount of $29,538.63 with interest and costs.

Thereafter, on July 17, 1973, Heersche, Iowa Mutual and Sugden filed an amended motion for revision of judgment, alleging that because of this court's decision in Butters v....