Hoskins v. Hotel Randolph Co.

Decision Date16 December 1926
Docket NumberNo. 36669.,36669.
Citation211 N.W. 423,203 Iowa 1152
PartiesHOSKINS v. HOTEL RANDOLPH CO.
CourtIowa Supreme Court

OPINION TEXT STARTS HERE

Appeal from District Court, Polk County; O. S. Franklin, Judge.

Action for damages from personal injuries sustained by plaintiff in a passenger elevator in the hotel of the defendant, Hotel Randolph Company. Defendant vouched in the manufacturer of the elevator, the Otis Elevator Company. The Otis Company defended in the name of the Hotel Company. Verdict for plaintiff, and judgment entered against the Hotel Company. No appeal has been taken from that judgment. After the entry of judgment defendant moved that it be entered against the Otis Company and that the Otis Company be recited as primarily liable as principal and the Hotel Company as surety under section 3779, Code 1897. Plaintiff also moved for judgment against the Otis Company for the amount of the verdict and costs. These motions were overruled, and plaintiff and defendant separately appeal. Reversed.William E. Miller, of Des Moines, for appellant Lois Hoskins.

Carr, Cox, Evans & Riley, of Des Moines, for appellant Hotel Randolph Co.

Sims, Welch, Godman & Stransky, of Chicago, Ill., and Miller, Kelly, Shuttleworth & McManus and Parrish, Cohen, Guthrie & Watters, all of Des Moines, for Otis Elevator Co.

MORLING, J.

Plaintiff brought a prior action against the Hotel Randolph Company, Otis Elevator Company, and others, to recover for the injuries here in controversy, alleging them to have resulted from the negligence of the defendants. The Otis Company removed the cause to the federal court. That court on the Otis Company's motion held that there was a misjoinder of causes and gave plaintiff leave to set them forth in separate petitions. The plaintiff then filed in the federal court her petition against the Otis Company, alleging that the Otis Company was negligent in the particulars charged against the Hotel Company in this action. The action in the federal court is still pending. Plaintiff dismissed as to the other defendants and filed in the state court in the present case her petition against the Hotel Company and its manager, Mong. Mong has been dismissed. This petition alleges negligence in the construction, inspection, maintenance, repair, and operation of the elevator. It makes no specific reference to liability on the part of any manufacturer or dealer. The Hotel Company answered by general denial, and then served on the Otis Company notice of the commencement of the action, setting out generally the claim of the petition, and stating:

“You are further notified that the undersigned claim that if they are liable to the plaintiff in this action, it is only because of your negligence for which they are or may be held responsible to the plaintiff, and that except for your negligence the plaintiff would not be entitled to recover of the undersigned, the defendants named in the action. You are therefore notified that the undersigned will claim of you indemnity for all sums which they may be compelled to pay to the plaintiff on account of the matters and things alleged in the petition heretofore referred to, including all judgments, costs, attorneys' fees, and all expenses incurred in the defense thereof. You are therefore notified to appear and defend said action on behalf of said Hotel Randolph Company and George L. Mong and hold them harmless from all judgments, attorneys' fees, and expenses of defense.”

To this notice the Otis Company replied that in consequence of it the Otis Company, through its attorneys (named), would appear and defend, and “will at this time assume charge of the defense of said suit.” This reply stated as the understanding of the Otis Company that it was not liable to plaintiff, and that it disclaimed any liability to defendants or to plaintiff, “which has been, is, may, might, or can be claimed by the said defendant to be based upon any matter connected with or growing out of this suit, and you are advised that it appears and defends * * * in consequence of your notice. * * *” The Otis Company requested defendants and its attorneys to deliver to the Otis Company's attorneys everything in any way connected with the suit. The Hotel Company's attorney handed its papers to the Otis Company's attorneys. Later the Hotel Company notified the Otis Company that the claim of indemnity and the opportunity to defend were inseparable and the defense must be accepted by the Otis Company if at all only on the basis named in the original notice to defend. The Otis Company responded:

We are prepared to go ahead and defend this suit for both of said defendants just as stated in the notice of acceptance, and refuse to agree with you as to what legal rights either this Otis Elevator Company or the defendant Hotel Randolph Company and George L. Mong may have, but we are willing to and will abide by the law in regard thereto. If you do not wish us to go ahead with this suit, if you will so advise us, we will withdraw; otherwise we intend to go ahead with the defense.”

When the case was called for trial a colloquy took place between the attorney for the Hotel Company and the attorney for the Otis Company, in which the various notices referred to were recited. The attorney for the Hotel Company stated that he again called the attention of the Otis Company to the fact that the notice to defend was based on and inseparable from a claim of right to be indemnified, and that the Hotel Company refused to acquiesce in any conditions in accepting the defense. He said:

“You may defend the suit or not in accordance with the terms of said notice and in accord with your own judgment.”

The Otis Company attorneys recited the notices, their conferences, and preparation to defend, and stated:

We are willing to stand on the record and assume any liability that the law imposes upon us, but as the representatives of the Otis Elevator Company and coming in to defend, we cannot agree to assume any liability which the law does not impose upon the Otis Elevator Company. We ask now of the personal counsel for Mong and Hotel Randolph Company whether they desire us to go ahead and try this case or not.”

To this the attorney for the Hotel Company replied:

“I am not asking you to agree to the assumption of any liability. I am only insisting upon the right of your acceptance or rejection of the defense of this suit on the basis of the terms of the notice. * * * The right to be indemnified is claimed, and, because of that fact, the opportunity is given you to defend. You may accept it or reject it, as your judgment dictates.”

The attorneys for the Otis Company stated:

We are here to try this lawsuit, if you want it tried by us, and if you do not, if you will say so we will get out. We do not have to assume any liability that the law does not impose; * * * we assume all liability that the law imposes, and nothing else. * * * If you want us in here we will stay. If you don't want us in, we will get out.

Mr. Evans: It is not for us to decide. * * * The question * * * is a question for you to decide on the terms of notices. * * *”

The reply of the Otis Company's attorneys was:

“The record may show that we assume the defense under the law as to any liability that the law imposes, and no more.”

Thereupon the case went to trial, and the defense was conducted by the attorneys for the Otis Company.

The evidence showed that the Otis Company made the original installation and formerly had a service contract with the Hotel Company; that the Otis Company had furnished and installed repairs and replacements, some as to which negligence was assigned and found as late as a week before the accident. The Otis Company called a large number of witnesses, most of them Otis Company employees, whose testimony was directed largely to the establishment of the claim that the accident was the result of the act of the chief clerk of the hotel in replacing the circuit breaker when the car containing the plaintiff was stalled, thereby closing the circuit, sending the car to the top of the shaft in collision with the overhead beam, and causing the lift cable to break and the car to fall, and also of an act of the Hotel Company's engineer causing the safety brake cable to become tangled and fouled. The Hotel Company in open court protested against this line of evidence (as well as against the conduct of the defense in other matters). He stated that the method of defense adopted would be urged as further grounds of estoppel against the Otis Company from denying its liability to make indemnity. The Otis Company attorneys stated that their purpose was not to prejudice the Hotel Company, but to put the facts in evidence and to show that the clerk was acting outside the scope of his employment and that the engineer acted inadvertently and therefore the Hotel Company was not liable. It had been proven and not denied that the chief clerk was next to the manager in command and, in the manager's absence, was manager. The Otis Company attorneys reiterated that that company did not assume any liability except such as was imposed by law, asserted that the defense was being made in good faith, and that if the Hotel Company desired they would withdraw. They were not requested to withdraw and did not do so. During one of these discussions the Hotel Company asked that the Otis Company be made a defendant. The Otis Company objected to counsel coming in and representing the Hotel Company, for the reason that the defense of the suit had been turned over to us. * * * We assumed the burden of this suit.” This request was denied. In a conference before trial the Hotel Company attorney had expressed his opposition to the theory that the Hotel Company would not be liable for the act of its chief clerk as untenable.

The testimony of the Otis Company employés was also directed to the refutation of the charges of negligence in planning, construction, and replacements.

The Otis Company attorneys requested...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT