Cunningham Brothers, Inc. v. Bail

Citation407 F.2d 1165
Decision Date16 June 1969
Docket NumberNo. 17113.,17113.
PartiesCUNNINGHAM BROTHERS, INC., a Wisconsin Corporation, Plaintiff-Appellant, v. Harry BAIL, Walter Gabel, William Katz, Ben Peters, Ed Ungrund, Dean Addis and Davidson Masonry & Restoration, Inc., an Illinois Corporation, Defendants-Appellees.
CourtUnited States Courts of Appeals. United States Court of Appeals (7th Circuit)

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Jack E. Horsley, Richard F. Record, Jr., and Donald E. Castles of Craig & Craig, Mattoon, Ill., for plaintiff-appellant.

Harlan Heller and Dale A. Cini of Ryan & Heller, Mattoon, Ill., Leonard T. Flynn, of Franklin, Flynn & Palmer, Champaign, Ill., for defendants-appellees.

Before CASTLE, Chief Judge, and CUMMINGS and KERNER, Circuit Judges.

Certiorari Denied June 16, 1969. See 89 S.Ct. 2100.

CASTLE, Chief Judge.

Plaintiff brings this appeal from the district court's dismissal of its three-count complaint filed against the individual and corporate defendants under the Declaratory Judgment Act, 28 U.S.C. § 2201.1 Plaintiff had contracted as general contractor to construct a building for Moore Business Forms, Inc., at Charleston, Illinois. Defendant, Davidson Masonry and Restoration, Inc., was engaged by plaintiff as the masonry subcontractor for the job, and the individual defendants were employees of Davidson who were injured when the platform on which they were standing collapsed.

Defendant Gabel filed a complaint for personal injuries against plaintiff in the district court on October 1, 1967, plaintiff filed its declaratory judgment complaint on November 9, 1967, defendant Katz counterclaimed in the declaratory judgment suit, and at least one of the other individual defendants has since filed suit against plaintiff in a state court. The individual defendants have based their actions on the Illinois Structural Work Act, Ill.Rev.Stat., 1965, Ch. 48, § 60 et seq.

Count I of plaintiff's complaint is directed against the individual defendants only and seeks a declaration that plaintiff did not "have charge of" the work being performed by these defendants at the job site, within the meaning of the Illinois Structural Work Act, and that those defendants have no "cause of action" against plaintiff under the Act for any personal injuries they may have sustained on the date of the accident. Counts II & III of the complaint are directed only against Davidson Masonry & Restoration, Inc. Count II seeks a declaration that Davidson, by reason of its contract with plaintiff, is liable to indemnify and hold plaintiff harmless for any amount which may be recovered against plaintiff by the individual defendants. The district court dismissed the complaint and held that the action was inappropriate for declaratory relief.

Plaintiff contends that the district court erred in dismissing the complaint since an action by a potential tort defendant against the potential plaintiffs should fall within the purpose of the Declaratory Judgment Act. Thus, instead of having to wait and be sued in different state and federal forums by the various injured parties, plaintiff argues that it should be allowed to bring them together in one action, along with the alleged indemnitor, and thereby adjudicate the rights of all the parties at one time and place.

We hold that the district court was correct in dismissing the complaint, and accordingly affirm the judgment below.

Regarding the individual defendants, we are of the opinion that to compel potential personal injury plaintiffs to litigate their claims at a time and in a forum chosen by the alleged tortfeasor would be a perversion of the Declaratory Judgment Act. The primary purpose of that Act is "to avoid accrual of avoidable damages to one not certain of his rights and to afford him an early adjudication without waiting until his adversary should see fit to begin suit, after damage had accrued." E. Edelmann & Co. v. Triple-A Specialty Co., 88 F.2d 852, 854 (7th Cir. 1937). See also Milwaukee Gas Specialty Co. v. Mercoid Corp., 104 F.2d 589, 591-592 (7th Cir. 1939); Luckenbach S.S. Co. v. United States, 312 F.2d 545 (2d Cir. 1963); 6A Moore's Fed. Practice ¶ 57.06, pp. 3021-22 (1966).

Since it is not contended that the present action was brought to avoid damages which would accrue if a certain course of conduct were taken in the future, plaintiff must establish that this suit falls within some other purpose of the Declaratory Judgment Act. Plaintiff attempts to support its action by arguing that the purpose of the Act is not confined solely to settling controveries before they ripen into legal liabilities, but is broad enough to permit the determination of rights which have arisen due to an alleged negligent act which has already occurred. Plaintiff also contends that this action was not brought to determine the issue of negligence, but only to determine the rights of the parties under the contracts between them so as to avoid multiplicity of action.

However, plaintiff has failed to demonstrate how the allowance of the instant declaratory judgment action would "effectuate the purposes of the statute and thereby afford relief from uncertainty and insecurity with respect to rights, status and other legal relations." Sears, Roebuck & Co. v. American Mutual Liability Co., 372 F.2d 435, 438 (7th Cir. 1967); American Auto. Insurance Co. v. Freundt, 103 F.2d 613, 619 (7th Cir. 1939); Aetna Casualty & Surety Co. v. Quarles, 92 F.2d 321, 324 (4th Cir. 1937). Rather, regarding the individual defendants, plaintiff seems to be attempting to "try issues or determine the validity of defenses in pending cases," as was condemned by Freundt and Quarles, supra.

Moreover, couching the suit in terms of contract rather than tort does not change the nature of the action. The issue of plaintiff's negligence would necessarily be tried since the individual defendants would be compelled to counter-claim under Rule 13(a), Fed.Rules Civil Proc. Rules 20(b) and 42(b), regarding separate trials, would be of little value to these defendants, since plaintiff's liability, if any, would be determined in the primary action.

Thus, there is good reason for the noted lack of precedent supporting plaintiff's position. To allow a declaratory judgment action under the facts before us would be to allow a substitute for the traditional procedures for adjudicating negligence cases. We agree with the conclusion reached in Sun Oil Co. v. Transcontinental Gas Pipe Line Corp., 108 F.Supp. 280, 282 (E.D.Pa.1952), aff'd (adopting opinion of district court), 203 F.2d 957 (3d Cir. 1953), that "it is not one of the purposes of the de-declaratory judgment acts to enable a prospective negligence action defendant to obtain a declaration of non-liability."2

To so reverse the roles of the parties would affect more than merely the form of action, but would jeopardize those procedures which the law has traditionally provided to injured parties by which to seek judicial relief. Although "the existence of another adequate remedy does not preclude a judgment for declaratory relief in cases where it is appropriate," Rule 57, Fed.Rules Civil Proc., we hold that such relief is inappropriate in the instant case since "more effective relief can and should be obtained by another procedure." Chicago Metallic...

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