Johnston v. Percy Const., Inc.
| Decision Date | 19 October 1977 |
| Docket Number | No. 2-58752,2-58752 |
| Citation | 258 N.W.2d 366 |
| Parties | 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. |
| Court | Iowa Supreme Court |
Lindeman & Yagla, Waterloo, for appellant.
Laird, Burington, Bovard & Heiny, Mason City, for appellee.
Heard by MOORE, C. J., and RAWLINGS, REES, HARRIS and McCORMICK, JJ.
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.
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.
The questions in this appeal are whether the trial court erred in sustaining the motions to dismiss and in overruling Salsbury's motions for leave to amend.
I. The motions to dismiss. Under rule 104(b), R.C.P., a motion to dismiss a pleading for failure to state a claim on which any relief can be granted must be "filed before answer". Riediger v. Marrland Development Corp., 253 N.W.2d 915, 916 (Iowa 1977). Other procedural devices are available for disposition of matters after answer but were not employed here. Payne's August 1975 motions to dismiss were untimely and therefore should have been overruled.
We do not decide whether we would reach the same conclusion if we were to reach the merits of the motions. On that subject see Newton v. City of Grundy Center, 246 Iowa 916, 919, 70 N.W.2d 162, 164 (1955); Case v. Blood, 71 Iowa 632, 634, 33 N.W. 144, 145 (1887), and Riediger, 253 N.W.2d at 916-917.
The trial court erred in sustaining the motions to dismiss.
II. The motions for leave to amend. Salsbury alternatively contends it did not need to amend its third party petitions in order to seek indemnity on the settlement, but, if it did have to amend, the trial court abused its discretion in overruling its motions seeking leave to do so.
It is true that the settlements with plaintiffs did not defeat Salsbury's right to claim indemnity from Payne. Buchhop v. General Growth Properties, Etc., 235 N.W.2d 301, 302-303 (Iowa 1975). However, because of the settlements it was necessary for Salsbury to amend its third party petitions to state claims for indemnity based on the changed circumstances. A party seeking indemnity for amounts paid in settlement "must plead and prove three basic elements: (1) it was liable to the injured party, (2) the settlement was reasonable and (3) the facts are such as to give rise to a duty on the part of the indemnitor to indemnify the indemnitee." Ke-Wash Company v. Stauffer Chemical Company, 177 N.W.2d 5, 11 (Iowa 1970). By filing the motions to dismiss Payne demonstrated he was not willing to try the new issues by consent.
The present situation is within rule 88, R.C.P., governing amendments generally, and rule 90, R.C.P., which at the time involved here provided in pertinent part:
A party may file a supplemental pleading alleging facts material to the case which have happened subsequent to the commencement of the action, or come to his knowledge since his prior pleading.
When a responsive pleading has been filed, leave of court is required for amendments. The purpose is to give the adverse party a right to object to amendments which might affect trial preparation. West v. Hawker, 237 N.W.2d 802, 807 (Iowa 1976). The decision is a matter...
To continue reading
Request your trial
-
Prince George's County v. Blumberg
...v. Martin 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 ass......
-
Moser v. Thorp Sales Corp.
...rule 90. 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, ......
-
Bennett v. City of Redfield
...court is 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 ......
-
Freeman v. Bonnes Trucking, Inc.
...Trucking 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 th......