Bush Terminal Bldgs. Co. v. Luckenbach S.S. Co.

• Decision Date: 30 March 1961
• Parties: , 174 N.E.2d 516 BUSH TERMINAL BUILDINGS CO. et al., Plaintiffs, v. LUCKENBACH STEAMSHIP CO., Inc., Respondent; H. Muehlstein & Co., Inc., Appellant, et al., Defendant.
• Court: New York Court of Appeals Court of Appeals

Page 428

214 N.Y.S.2d 428

9 N.Y.2d 426, 174 N.E.2d 516

BUSH TERMINAL BUILDINGS CO. et al., Plaintiffs, v. LUCKENBACH STEAMSHIP CO., Inc., Respondent; H. Muehlstein &

Co., Inc., Appellant, et al., Defendant.

Court of Appeals of New York.

March 30, 1961.

Joseph M. Callahan and Joseph J. Corn, Jr., New York City, for appellant.

William M. Kimball, Hervey C. Allen and John S. John S. Rogers, New York City, for respondent.

BURKE, Judge.

This action is brought by plaintiffs against Luckenbach, Atlantic and Muehlstein for the alleged negligent injury to property arising out of a fire and explosion that occurred upon a pier at the foot of 35th Street, Brooklyn, New York City. Defendant Luckenbach, which operated the pier, entered into a contract with defendant Atlantic, under which the latter was to repair Luckenbach's cargo-handling equipment affixed to the north side of the pier. In the course of its work under such contract, Atlantic operated oxyacetylene torches in the vicinity of a variety of combustible, inflammable and explosive shipments, including Cordeau detonating fuse or Primacord containing explosives. Sparks from the torch are alleged to have ignited rubber scrap and the fire spread to the Primacord which exploded. The rubber scrap, which was delivered by Muehlstein about a month before the fire and placed by Luckenbach on the north side of the pier, is claimed to have been so insecurely packed in the burlap bags that the stevedores refused to load it and some of it loosely around the pier deck. loosely arond the pier deck.

Muehlstein, by permission of the Appellate Division, First Department, seeks to reverse an order which modified an order of the Special Term, New York County, dismissing a cross complaint by Luckenbach Steamship Co., Inc., against H. Muehlstein & Co., Inc., and reinstated the cross complaint. The Appellate Division, certified the following question: 'Is the first cross-complaint against the defendant H. Muehlstein & Co., Inc. contained in the amended answer of the defendant, Luckenbach Steamship Co., Inc., sufficient in law?'

The answer to that question involves a determination of whether Luckenbach may seek indemnity. Luckenbach's cross claim for indemnity alleges the primary active negligence of Muehlstein and claims that if Luckenbach is held liable it will be due to the active fault of Muehlstein.

The culpability of the person seeking indemnity determines whether recovery will be allowed against a joint tort-feasor. A right to implied indemnity does not exist if a defendant's conduct was active. Middleton v. City of New York, 300 N.Y. 732, 92 N.E.2d 312; Sannit v. Buffalo Wire Works Co., 302 N.Y. 820, 100 N.E.2d 33; Dick v. Sunbright Steam Laundry Corp., 307 N.Y. 422, 121 N.E.2d 399; Coffey v. Flower City Carting & Excavating Co., 2 N.Y.2d 898, 161 N.Y.S.2d 149; Balch v. Richby Realty Corp., 4 N.Y.2d 1006, 177 N.Y.S.2d 519; Putvin v. Buffalo Elec. Co., 1959, 5 N.Y.2d 447, 186 N.Y.S.2d 15; Bernardo v. Fordham Hoisting Equip. Co., 6 N.Y.2d 733, 185 N.Y.S.2d 817; Berg v. Town of Huntington, 7 N.Y.2d 871, 196 N.Y.S.2d 1001 164 N.E.2d 871.

Acts of omission constitute active negligence as well as acts of commission (McFall v. Compagnie Maritime Belge (Lloyd Royal) S.A., 304 N.Y. 314, 107 N.E.2d 463; Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 186 N.Y.S.2d 15, supra) and where defendant is alleged to have participated in or 'concurred in the wrong which caused the damages' there is no right of recovery over (Oceanic Steam Nav. Co., Limited v. Compania Transatlantica Espanola, 134 N.Y. 461, 465, 31 N.E. 987). Moreover, where there is a charge of notice, a failure to perform the duty to inspect may not be deemed mere passive negligence (25 N.Y.U.L.Rev. 845, 859; 39 Cornell L.Q. 484, 499; 28 Fordham L.Rev. 782, 786). But, where a complaint alleges several separate and distinct theories of negligence, a claim over may be allowed if the recovery sought is based on passive negligence (e. g., Putvin v. Buffalo Elec. Co., 5 N.Y.2d 447, 186 N.Y.S.2d 15, supra).

We have concluded that the complaint does not contain allegations of passive negligence against Luckenbach which would make Luckenbach liable for Muehlstein's active negligence. An analysis in context of the allegations of the complaint of the plaintiffs as a whole convinces us that Luckenbach is charged with the creation and continuance of a dangerous situation and a participation 'in the wrong which created the damage' which are the basis of its liability. Any contribution to the dangerous situation which was attibutable to Muehlstein was made operative through the concurring acts of Luckenbach. Since actual fault is the predicate for liability against Luckenbach, it cannot claim over against Muehlstein.

None of the allegations in the complaint can be construed as charging Luckenbach with liability without actual fault on its part. After describing Luckenbach's possession and operation of the pier, including the situs of the inflammable and explosive materials, the plaintiffs allege that Atlantic was using the torches 'with the knowledge, consent and approval of the defendant, Luckenbach', and they define the negligence of Luckenbach in terms of its continuance of the storage of the rubber in spite of its rejection of the bags of rubber for lack of fitness for transportation.

The gravamen, therefore, of the plaintiffs' charges is that Luckenbach negligently maintained its pier and appurtenances so it was inherently dangerous and constituted a nuisance and a fire hazard. The reference to the knowledge of the torch operations of Atlantic, the storing of inflammable and explosive materials and the disorder on the pier, are illustrations of conduct...