Blackford v. Sioux City Dressed Pork, Inc.

• Citation: 118 N.W.2d 559,254 Iowa 845
• Decision Date: 11 December 1962
• Docket Number: No. 50810,50810
• Parties: Robert F. BLACKFORD, Plaintiff, v. SIOUX CITY DRESSED PORK, INC., a Corporation, Defendant. SIOUX CITY DRESSED PORK, INC., a Corporation, Cross-Petitioner-Appellant, v. R. E. LANGLEY, Defendant to Cross-Petitioner-Appellee.
• Court: United States State Supreme Court of Iowa

Page 559

118 N.W.2d 559

254 Iowa 845

Robert F. BLACKFORD, Plaintiff, v. SIOUX CITY DRESSED PORK, INC., a Corporation, Defendant.

SIOUX CITY DRESSED PORK, INC., a Corporation, Cross-Petitioner-Appellant, v. R. E. LANGLEY, Defendant to Cross-Petitioner-Appellee.

No. 50810.

Supreme Court of Iowa.

Dec. 11, 1962.

Rehearing Denied Feb. 12, 1963.

Gleysteen, Nelson, Harper, Kunze & Eidsmoe, Sioux City, for cross-petitioner-appellant.

Sifford & Wadden, Sioux City, Corbett & Corbett of Sioux City, for defendant to cross-petitioner-appellee.

William A. Shuminsky, Sioux City, for plaintiff.

THOMPSON, Justice.

The case before us arises through an appeal from a ruling and judgment of the trial court which sustained a motion to dismiss the cross-petition of Sioux City Dressed Pork, Inc., against the third party defendant, R. E. Langley. The case is before us only upon the pleadings and the motions and rulings thereon.

The plaintiff is not involved in the issues to be determined here. His petition alleges that at all times material he was an employee of R. E. Langley, now the cross-petition defendant. Other allegations are: that about December 1, 1958, Langley entered into a contract with the defendant and cross-petitioner, Sioux City Dressed Pork, Inc., under the terms of which Langley agreed to furnish labor to wash the walls, equipment and floors of the cross-petitioner's plant in Sioux City at the end of each day's operations. A copy of the contract is attached to the petition, and a copy of the same contract is attached to the cross- petition. By its terms Langley agreed to furnish all necessary labor to wash the walls, equipment and floors in the plant in the area where the slaughtering and refrigerating were carried on. This was to be done pursuant to sanitary requirements. Langley agreed to furnish and pay for supervision and control of the labor necessary to perform the job and to maintain his own payroll accounts.

The contract also contained this provision: '5. Langley shall perform the work as he deems fit, the only requirements being that any specifications for cleanliness by the Federal Inspectors must be met * * *'. Paragraph 7 provided in part: '* * * Langley shall have responsibility for personnel employed by him, while in the plant or elsewhere.'

The plaintiff's petition further alleged that on December 3, 1960, he was severely injured when his hand was caught in a pork casing cleaning machine which he was attempting to clean while it was in motion, and his injuries were caused by the negligence of the defendant in failing to have a proper guard or other safety appliance on said machine, in permitting plaintiff to operate it without such guard and without proper instructions or warning as to the danger involved; and in ordering the plaintiff to complete the work of cleaning the machine at a speed which increased the danger of an accident. Other negligences closely related to those stated were pleaded.

The defendant filed its answer denying liability and pleading other defense and at the same time filed its cross-petition against Langley in which it pleaded the suit brought against it by the plaintiff; the contract between itself and Langley; its denial of any liability to the plaintiff; and that if it should be held liable to the plaintiff it would be entitled to indemnity or contribution from the cross-petition defendant, Langley. It then pleaded that Langley was negligent in certain specified particulars and that said negligence proximately caused the plaintiff's injuries. These specifications, summarized, were: failure to instruct plaintiff as to the proper method of washing the machine and the proper method of turning on and off the various machines and the proper care to be observed in performing the services for which Langley had employed plaintiff; in allowing the plaintiff to wash the machine while it was in motion; and in failing to warn plaintiff of the hazards involved in working about moving machinery. The prayer of the cross-petition was for indemnity against Langley for any judgment recovered by plaintiff against the cross-petitioner; or in the alternative for contribution from Langley.

To this cross-petition Langley filed his motion to dismiss, which we set out in full: '1. As appears in the allegations of Paragraph III (including paragraph 4 of Exhibit A) and Paragraph IV of said Cross-Petition, plaintiff was an employee of defendant to cross-petition and by the provisions of Chapter 85 of the 1958 Code of Iowa, I.C.A. the sole and exclusive liability of defendant to cross-petition is to provide compensation as provided by said Chapter. 2. Cross-Petitioner alleges it is not liable to plaintiff Blackford, and therefore said cross-petition fails to state a cause of action against defendant to cross-petition, since cross-petitioner fails to plead cross-petitioner's liability to plaintiff.' The trial court entered its ruling sustaining the motion to dismiss as to Par. 2, and stating: 'The Motion having been so sustained, no ruling is made by the Court as to Par. 1 thereof as it is for the purpose of this Motion and Ruling now moot.' From this ruling of the court we have the present appeal.

I. The ruling of the trial court cannot be sustained upon the ground on which it was placed. At the time the ruling was made, we had not decided Fane v. Hootman, Iowa, 117 N.W.2d 435. The trial court in all probability relied upon our pronouncement in Allied Mutual Casualty Company v. Long, 252 Iowa 829, 107 N.W.2d 682. But we distinguished this case in the Fane case, and pointed out that Rule 33(b), R.C.P., 58 I.C.A. clearly provides for bringing in a third party: 'When a defendant to a petition * * * will, if held liable thereon, thereby be entitled to a right of action against one not already a party, he may move to have such party brought in * * *'. In the Allied Mutual case there was no action pending; in the Fane case there was.

The instant case is parallel to the Fane case. The cross-petition meets the tests of that case and of Rule 33(b), supra. If the defendant is held liable to the plaintiff, he alleges the cross-petition defendant will thereby be liable to him.

II. However, the cross-petition plaintiff now concedes that it will have no right to contribution in any event; probably because there can be no joint liability of Langley and itself to the plaintiff, because Langley's liability is different, being measured by the Iowa Workmen's Compensation laws. It does, however, insist that it has pleaded a cause of action for indemnity if it is held liable to the plaintiff. Since this issue will arise upon further proceedings in the case, we think it should be determined. Of course in this opinion we are speaking solely of the case as made by the pleadings; what the proofs may be we have no way of knowing and no occasion to decide.

The right of indemnity has often been recognized in Iowa. In Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 1143, 49 N.W.2d 501, 506, we noted several situations under which indemnity may be recovered, including this: 'It is broadly stated that 'where one is compelled to pay money which in justice another ought to pay * * * the former may recover from the latter the sums so paid * * *.'' The case of Ryan Stevedoring Co. v. Pan-Atlantic Steamship Corporation, 350 U.S. 124, 76 S.Ct. 232, 100 L.Ed. 133, is closely in point on this and other questions which will be discussed later. In that case, the steamship company had an informal contract with the stevedoring company to load and unload its ships. The cargo was improperly stored, resulting in an injury to one of the employees of the stevedoring company. He brought action against the steamship company, which was held liable because of failure to inspect. It was held entitled to indemnity, the United States Supreme Court saying: 'The shipowner here holds petitioner's uncontroverted agreement to perform all of the shipowner's stevedoring operations at the time and place where the cargo in question was loaded. That agreement necessarily includes petitioner's obligation not only to stow the pulp rolls, but to stow them properly and safely. Competency and safety of storage are inescapable elements of the service undertaken.' Loc.Cit. 350 U.S. 134, 76 S.Ct. 237, 100 L.Ed. 133.

In considering the same case, the U.S. Circuit Court of Appeals, Second Circuit, said: 'Nor does the absence of a formal contract bar indemnity. * * * Ryan was obligated by implied contract to perform the work in a reasonably safe manner.' Palazzolo v. Pan-Atlantic Steamship Corporation, 211 F.2d 277, 279. The application of these principles to the case at bar is evident. The contract between the cross-petition plaintiff and Langley gave Langley entire supervision over the work 'as he deems fit'. He employed and directed all labor, and it was his duty to see that the work was performed safely and so that no one was injured. Assuming, but not deciding, that the original defendant may have been negligent in failing to guard the machine properly, or in other ways specified, yet the primary duty to see that the work was done safely was upon Langley under his contract which impliedly required that care.

III. We come next to the important and troublesome question in the case. Langley, the cross-petition defendant, correctly says that even though the ground upon which the court granted the motion to dismiss cannot be upheld, if any ground of the motion was good and should have been sustained, it is our duty to affirm. Hot Spot Detector v. Rolfes Electric Corporation, 251 Iowa 647, 653, 102 N.W.2d 354, 360, and citations; Culbertson v. Anderson, 251 Iowa 265, 273, 274, 100 N.W.2d 633, 637, 638; State v. Eichler, 248 Iowa 1267, 1274, 1275, 83 N.W.2d 576, 580.

We are therefore faced with the difficult question whether an action for indemnity will lie in an otherwise proper case by a third party who has been compelled to respond in damages...