Doall v. Michigan Consol. Gas Co.

• Decision Date: 29 April 1970
• Docket Number: Docket No. 5413,No. 1,1
• Citation: 179 N.W.2d 26,23 Mich.App. 454
• Parties: John F. DOALL and Marion Doall, his wife, Plaintiffs, v. MICHIGAN CONSOLIDATED GAS COMPANY, a Michigan corporation, and Whirlpool Corporation, a foreign corporation, Defendants and Third-Party Plaintiffs-Appellants, v. The WILLIAMSON COMPANY, a foreign corporation, Third-Party Defendant-Appellee
• Court: Court of Appeal of Michigan — District of US

Page 26

179 N.W.2d 26

23 Mich.App. 454

John F. DOALL and Marion Doall, his wife, Plaintiffs, v. MICHIGAN CONSOLIDATED GAS COMPANY, a Michigan corporation, and Whirlpool Corporation, a foreign corporation, Defendants and Third-Party Plaintiffs-Appellants, v. The WILLIAMSON COMPANY, a foreign corporation, Third-Party

Defendant-Appellee.

Docket No. 5413.

Court of Appeals of Michigan, Division No. 1.

April 29, 1970.

Released for Publication Aug. 28, 1970.

C. Bruce Taylor, Detroit, for Mich. Con.

Buell Doelle, Vandeveer, Doelle, Garzia, Tonkin & Kerr, Detroit, for Whirlpool.

Joseph J. Bileti, Detroit, for Williamson.

Before FITZGERALD, P.J., and McGREGOR and V. J. BRENNAN, JJ.

V. J. BRENNAN, Judge.

This is an appeal by Michigan Consolidated Gas Company and Whirlpool Corporation, defendants and third-party plaintiffs, from an order of the Wayne county circuit court dismissing their third-party complaints against The Williamson Company. One of the principal issues presented by this appeal--whether impleader under GCR 1963, 204 is of right or merely within the discretion of the trial court where a claim of contribution against an alleged joint tort-feasor is involved--has been made dispositive by the Supreme Court's recent decision in Moyses v. Spartan Asphalt Paving Company (1970), 383 Mich. 314, 174 N.W.2d 797. Impleader of an alleged joint tort-feasor under a claim of contribution is not of right, but within the sound discretion of the trial court. ¹ Since it is, and since the trial court in the instant case has not been shown to have abused its discretion, we affirm the order dismissing the third-party complaints.

Plaintiffs John and Marion Doall filed their complaint in this yet untried cause on October 28, 1963, alleging that a gas refrigerator manufactured by Whirlpool Corporation and sold to them by Michigan Consolidated Gas Company in August, 1960, emitted certain chemicals and gases which, after traveling through the house heating and air-conditioning system, permeated Marion Doall's skin and hair and formed a brown sticky substance on their furnishings, thereby causing $100,000 in damages to person and property. In May, 1967, after the answers, amendments to answers, replies and various interrogatories had been filed, defendants were granted leave under GCR 1963, 204.1 to file third-party complaints against The Williamson Company, the manufacturer and installer of the heating and air-conditioning system. Each defendant alleges, in part, in its complaint that should it be held liable to the plaintiffs it is entitled to recovery against The Williamson Company for contribution. Served with summons and complaint, The Williamson Company moved both for summary judgment (on the ground defendants failed to state a claim upon which relief can be granted) and for accelerated judgment (on the ground that the running of the statute of limitations on any claim plaintiffs might have against it bars a claim by the defendants for contribution). ²

In ruling on these motions, the court reconsidered its grant of leave, concluded that leave had been improvidently granted, and dismissed the third-party complaints. Delay and complication were assigned as the reason for the dismissal. Trial of what the court characterized as an already 'ancient' case would be further delayed by additional discovery and pretrial conferences, along with the third-party defendant's filing of responsive pleadings and a pretrial statement. Moreover, a case already complicated by multiple claims, multiple parties, and a difficult question of causation might well be put beyond the jury's comprehension with the addition of another party and its theories, claims and evidence.

Delay and complication are recognized bases for the discretionary denial of impleader, whether the impleader be on a theory of contribution, indemnity or otherwise:

'Impleader is by motion ex parte before service of the answer, or by motion with notice to plaintiff after the service of an answer. The granting of the motion rests within the sound discretion of the court, and there is no absolute right to join a third party defendant. Generally courts will be liberal in allowing the joinder of third party defendants, but it should be avoided where there might be prejudice to either party because of the complexity of the case. It should be remembered, however, that if there is objection on this basis, the court can always order separate trials of separate issues under GCR 1963, 505.2.

'Joiner (61 Negligence Law Section Bulletin 8, 12) says:

'In acting upon a motion made under the rule the judge will weigh the advantages of having the third party in the case against the following:

'1. The probability of delay, United States v. Jollimore (D.C.1949), 2 F.R.D. 148.

'2. Complications of the trial, McPherrin v. Hartford Ins. Co. (D.C.1940), 1 F.R.D. 88.

'3. The timeliness of the motion, Casey v. Calmar Steamship Corporation (D.Del.1956), 138 F.Supp. 751.

'4. The similarity of evidence, Jones v. Waterman S.S. Corp. (C.A. 3, 1946), 155 F.2d 992.

'5. The possibility of prejudice to the plaintiff, F.D.I.C. v. The National Surety Corp. (1950), 13 F.R.D. 201; Casey v. Calmar Steamship Corporation, supra.

'6. Possibility of prejudice to third-party...