Eckles v. Des Moines Casket Co.

• Decision Date: 13 March 1911
• Citation: 130 N.W. 113,152 Iowa 164
• Parties: J. P. ECKLES v. DES MOINES CASKET COMPANY, Appellant
• Court: Iowa Supreme Court

130 N.W. 113

152 Iowa 164

J. P. ECKLES v. DES MOINES CASKET COMPANY, Appellant

Supreme Court of Iowa, Des Moines

March 13, 1911

Appeal from Polk District Court.--HON. HUGH BRENNAN, Judge.

SUIT to recover damages for personal injuries. The defendant appeals from a ruling striking its plea of a former adjudication.

Affirmed.

Carr Carr & Evans, for appellant.

E. A Lingenfelter, for appellee.

SHERWIN C. J. EVANS, J., taking no part.

OPINION

SHERWIN, C. J.

The plaintiff alleged that a car of coal had been placed alongside the appellant's engine room, and that he was ordered to unload it, though such work was not in the line of his employment; that, in attempting to board the car for the purpose of unloading it, one of the iron handholds on the car gave way, and he was violently precipitated to the ground and injured. It was alleged that the defendant was negligent in not providing the plaintiff a safe place to work and in ordering him upon said car. In its answer the defendant alleged that the car in question was the property of the Chicago Great Western

Railway Company, then in the possession of and being operated by receivers, and that the plaintiff had theretofore brought an action against said railway company and the receivers to recover damages for the same injuries complained of herein, and that said cause was thereafter tried upon its merits and a verdict returned for said defendant. The defendant herein further alleged that, in his petition in said action against the railway, "the plaintiff alleged that the said car which he was attempting to unload was in an unsafe and defective condition, and that the top rung or handhold thereof gave way when he rested his weight upon it, and he was thereby precipitated to the ground and sustained the injuries complained of; that the injuries for which plaintiff sought to recover damages in said action are the same injuries for which he now seeks to recover of this defendant, and in the said action he alleged that they were caused by the defect in said car as alleged in this action; that the injuries for which the plaintiff sought to recover damages therein are the same injuries as those for which he now seeks to recover of defendant and that the alleged cause of accident therein is the same as he alleges in this action as the cause of his injuries." The plea of former adjudication was stricken upon motion of the plaintiff, and the defendant appealed from the ruling.

It is contended that the liability of the railway company and the defendant was joint and several, that the railway company was primarily liable, and that the judgment on the merits in its favor in the same cause of action is a bar to the present action. It is a well-recognized rule that, where one party has the right of recovery over against another, a judgment in favor of one primarily liable may be pleaded by the other as...