Johnston v. Percy Const., Inc., No. 2-58752

CourtUnited States State Supreme Court of Iowa
Writing for the CourtHeard by MOORE; McCORMICK
Citation258 N.W.2d 366
PartiesEsther L. JOHNSTON, Administrator of the Estate of Donald J. Johnston, Deceased, Plaintiff, v. PERCY CONSTRUCTION, INC., and Salsbury Laboratories, Defendants. SALSBURY LABORATORIES, Third Party Plaintiff, Appellant, v. Gene L. PAYNE, d/b/a Payne Plumbing and Heating, Third Party Defendant, Appellee. Gerald KLUNDER, Plaintiff, v. PERCY CONSTRUCTION, INC., and Salsbury Laboratories, Defendants. SALSBURY LABORATORIES, Third Party Plaintiff, Appellant, v. Gene L. PAYNE, d/b/a Payne Plumbing and Heating, Third Party Defendant, Appellee.
Docket NumberNo. 2-58752
Decision Date19 October 1977

Page 366

258 N.W.2d 366
Esther L. JOHNSTON, Administrator of the Estate of Donald J. Johnston, Deceased, Plaintiff,
v.
PERCY CONSTRUCTION, INC., and Salsbury Laboratories, Defendants.
SALSBURY LABORATORIES, Third Party Plaintiff, Appellant,
v.
Gene L. PAYNE, d/b/a Payne Plumbing and Heating, Third Party Defendant, Appellee.
Gerald KLUNDER, Plaintiff,
v.
PERCY CONSTRUCTION, INC., and Salsbury Laboratories, Defendants.
SALSBURY LABORATORIES, Third Party Plaintiff, Appellant,
v.
Gene L. PAYNE, d/b/a Payne Plumbing and Heating, Third Party Defendant, Appellee.
No. 2-58752.
Supreme Court of Iowa.
Oct. 19, 1977.

Page 368

Lindeman & Yagla, Waterloo, for appellant.

Laird, Burington, Bovard & Heiny, Mason City, for appellee.

Page 369

Heard by MOORE, C. J., and RAWLINGS, REES, HARRIS and McCORMICK, JJ.

McCORMICK, Justice.

Third party plaintiff Salsbury Laboratories appeals judgment dismissing two consolidated actions in which it sought indemnity from third party defendant Gene L. Payne, d/b/a Payne Plumbing and Heating. Salsbury contends the trial court erred in sustaining Payne's motions to dismiss and in overruling its motions for leave to amend its petitions. We reverse and remand.

These actions arose from a construction accident in December 1966 in which Donald J. Johnston was killed and Gerald Klunder was injured. Salsbury acted as its own general contractor in erecting a building on land which it owned near Charles City. Payne was hired to do plumbing. Percy Construction, Inc., received a contract to do steel and masonry construction work. Johnston and Klunder were Payne employees. The accident occurred when Klunder slipped on a loose steel grating on the partially completed second floor of the building and fell to the first floor. The grating also fell, striking Johnston and causing the injuries which led to his death.

Johnston's administrator commenced a wrongful death action against Salsbury and Percy in February 1968; Klunder sued the same defendants for personal injury damages in March 1968. Later that year, after the cases were at issue, Salsbury impleaded Payne as a third party defendant in each action. In its third party petitions Salsbury alleged Payne had breached an implied contract to perform work in a good and workmanlike manner and to use due care to assure its employees a safe place to work. On this basis Salsbury prayed for indemnity from Payne in each case "in an amount that verdict and judgment shall be rendered in favor of plaintiff herein and against the said defendant, third party plaintiff, if any * * *."

After considerable skirmishing on the pleadings Payne filed motions in December 1968 to dismiss each third party petition and alternative motions for separate trial on them. One of the grounds of the motions to dismiss was an allegation that the third party petition did not state a claim upon which relief could be granted. The trial court overruled the motions to dismiss and sustained the motions for separate trial of the third party actions. Payne filed his answer to the third party petitions.

Salsbury and Percy settled with the Johnston estate in 1969, as a result of which the administrator dismissed her petition with prejudice in June 1969. Salsbury and Percy settled with Klunder in 1972, and he dismissed his petition with prejudice in May 1972. Counsel for Payne had appeared as co-counsel for each plaintiff and is not shown to have withdrawn before the petitions were dismissed. In any event, Payne acknowledges he had knowledge of the settlements when they occurred.

In 1974 Salsbury filed a cross-petition against Percy seeking contribution in the Klunder action. Percy filed a special appearance, and Salsbury settled with Percy before it was ruled on. Salsbury dismissed its cross-petition against Percy in April 1975.

The clerk of court sent dismissal notices to the parties under rule 215.1, Rules of Civil Procedure, each year from 1969 through 1974. On each occasion until the last one Payne consented to orders continuing the cases. Payne refused to consent to a continuance beyond January 1, 1975, but upon Salsbury's motion the cases were ordered continued until December 31, 1975. Salsbury filed certificates of readiness for trial in May 1975, and at Salsbury's request the cases were consolidated for trial.

On August 5, 1975, Payne filed motions to dismiss each case, alleging in part that because the original plaintiffs had dismissed their actions no verdict or judgment would be rendered upon which Salsbury could obtain indemnity. Salsbury resisted the motions to dismiss and separately moved for leave to amend the third party petitions to allege the facts surrounding the settlements, aver their reasonableness, and pray for indemnity on the settlements rather than on judgments.

Page 370

At a pretrial conference on August 7, 1975, the trial court noted the actions were not ready for trial because the motions required ruling and discovery was not complete.

The trial court subsequently sustained the motions to dismiss on the ground the third party petitions did not state a claim upon which relief could be granted and, in the Klunder case, on an additional ground which Payne now concedes was not meritorious. The court overruled Salsbury's motion for leave to amend on grounds of laches, the bar of the statute of limitations and prejudice to Payne from introduction of the new issue relating to reasonableness of the settlements.

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14 practice notes
  • Moser v. Thorp Sales Corp., No. 61995
    • United States
    • United States State Supreme Court of Iowa
    • 25 Noviembre 1981
    ...It was within the discretion of the trial court to grant leave to file the supplemental pleadings. Johnston v. Percy Construction, Inc., 258 N.W.2d 366, 370 (Iowa 1977). We find no abuse of that Woods contend that since they were added as defendants only to the quiet title action, there sho......
  • Prince George's County v. Blumberg, No. 152
    • United States
    • Court of Special Appeals of Maryland
    • 7 Noviembre 1979
    ...K. Eby Const. Co.,169 Kan. 256, 218 P.2d 219 (1950); Smith v. Wilder, 270 Ala. 637, 120 So.2d 871 (1960); Johnston v. Percy Const., Inc., 258 N.W.2d 366 (Iowa 1977). Accordingly, the claim for damages asserted in the amended bill, being an emanation of the same cause of action asserted in 1......
  • Bennett v. City of Redfield, No. 88-1073
    • United States
    • United States State Supreme Court of Iowa
    • 20 Septiembre 1989
    ...a legal discretion to be exercised by applying the rule in light of all the circumstances of the case. Johnston v. Percy Constr., Inc., 258 N.W.2d 366, 371 (Iowa 1977). Here, the motion was filed approximately sixteen months after the suit was commenced. It was filed approximately twenty da......
  • Freeman v. Bonnes Trucking, Inc., No. 68603
    • United States
    • United States State Supreme Court of Iowa
    • 17 Agosto 1983
    ...and Bonnes to meet, was largely discretionary with the trial court in the interests of justice. Johnston v. Percy Construction Co., 258 N.W.2d 366, 370 (Iowa 1977); B & B Asphalt Co. Inc. v. T.S. McShane Co., Inc., 242 N.W.2d 279, 284 (Iowa 1976). While allowance of amendment is the rule an......
  • Request a trial to view additional results
14 cases
  • Moser v. Thorp Sales Corp., No. 61995
    • United States
    • United States State Supreme Court of Iowa
    • 25 Noviembre 1981
    ...It was within the discretion of the trial court to grant leave to file the supplemental pleadings. Johnston v. Percy Construction, Inc., 258 N.W.2d 366, 370 (Iowa 1977). We find no abuse of that Woods contend that since they were added as defendants only to the quiet title action, there sho......
  • Prince George's County v. Blumberg, No. 152
    • United States
    • Court of Special Appeals of Maryland
    • 7 Noviembre 1979
    ...K. Eby Const. Co.,169 Kan. 256, 218 P.2d 219 (1950); Smith v. Wilder, 270 Ala. 637, 120 So.2d 871 (1960); Johnston v. Percy Const., Inc., 258 N.W.2d 366 (Iowa 1977). Accordingly, the claim for damages asserted in the amended bill, being an emanation of the same cause of action asserted in 1......
  • Bennett v. City of Redfield, No. 88-1073
    • United States
    • United States State Supreme Court of Iowa
    • 20 Septiembre 1989
    ...a legal discretion to be exercised by applying the rule in light of all the circumstances of the case. Johnston v. Percy Constr., Inc., 258 N.W.2d 366, 371 (Iowa 1977). Here, the motion was filed approximately sixteen months after the suit was commenced. It was filed approximately twenty da......
  • Freeman v. Bonnes Trucking, Inc., No. 68603
    • United States
    • United States State Supreme Court of Iowa
    • 17 Agosto 1983
    ...and Bonnes to meet, was largely discretionary with the trial court in the interests of justice. Johnston v. Percy Construction Co., 258 N.W.2d 366, 370 (Iowa 1977); B & B Asphalt Co. Inc. v. T.S. McShane Co., Inc., 242 N.W.2d 279, 284 (Iowa 1976). While allowance of amendment is the rule an......
  • Request a trial to view additional results

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