Kittleson v. American Dist. Telegraph Co.
Decision Date | 29 November 1948 |
Docket Number | Civil Action No. 403. |
Citation | 81 F. Supp. 25 |
Parties | KITTLESON v. AMERICAN DIST. TELEGRAPH CO. (ARMOUR & CO., Third-Party Defendant). |
Court | U.S. District Court — Northern District of Iowa |
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George D. Dunn, Ray F. Clough, and Ray E. Clough, all of Mason City, Iowa, for plaintiff, Ray Kittleson.
John A. Senneff, Earl Smith, and Robert L. Bliss, all of Mason City, Iowa, for defendant and third-party plaintiff American Dist. Telegraph Co.
Ray F. Clough and Ray E. Clough, both of Mason City, Iowa, for third-party defendant Armour & Co.
Motions by the original plaintiff and the third-party defendant to dismiss the third-party complaint of the original defendant, involving questions relating to contribution among joint or concurring tort-feasors and limits of liability of an employer coming under the provisions of the Iowa Workmen's Compensation Act, Ch. 85, Code of Iowa 1946.
Armour & Company operates a meat packing plant at Mason City, Cerro Gordo County, Iowa. On May 14, 1947, employees of the American District Telegraph Company were at work on the roof of one of the plant buildings repairing the signalling system pursuant to contract between the Telegraph Company and Armour & Company. While so engaged one of these employees, John K. Cunningham, fell through a skylight and landed on Ray Kittleson, an employee of Armour & Company, and seriously injured him. He brought suit against the Telegraph Company in the District Court in and for Cerro Gordo County alleging negligence of its employee and demanding damages in the sum of $59,947.45 for his injuries. That suit was removed to this Court by the Telegraph Company on the grounds of diversity of citizenship. The plaintiff was and is a resident of Mason City, Cerro Gordo County, Iowa, and a citizen of the State of Iowa. The defendant is a corporation organized and existing under the laws of the State of Minnesota. Before filing its answer in this Court, the defendant filed a third-party complaint against Armour & Company under the provisions of Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A. Armour & Company is a corporation organized and existing under the laws of the State of Illinois. In the complaint of the plaintiff, Ray Kittleson, the allegations as to the negligence of the defendant, American District Telegraph Company, were as follows:
It appears from the pleadings that the employee, John K. Cunningham, fell through the roof of a skylight on what is known as the "Hog Kill Building" on his way to make repairs to the signalling system located on the roof of an adjoining building known as the "Hog Cutting Building." The American District Telegraph Company, in its third-party complaint, made the following allegations in regard to the negligence of Armour & Company:
The prayer for relief of the American District Telegraph Company is as follows:
"Wherefore, the Telegraph Co., being the defendant and third-party plaintiff, demands judgment against Armour & Company, third-party defendant, for all sums that may be adjudged against the defendant Telegraph Co. in favor of the plaintiff Ray Kittleson."
The contract between the Armour & Company and the American District Telegraph Company, relating to the installation and repair of the signalling system in question, contains no provisions relating to the matter of either party protecting the other from liability in connection with the carrying out of the contract.
If the American District Telegraph Company was not negligent, then there could be no recovery against it by the plaintiff, Ray Kittleson, and consequently no need of recovery over against Armour & Company, and that question would be moot. Therefore, the third-party relief requested by the American District Telegraph Company would be of legal materiality only if the jury should find that the American District Telegraph Company was guilty of negligence as charged by the plaintiff, Ray Kittleson. For the purpose of this motion, it is necessary to assume that the jury would so find. For the purpose of this motion, it is also necessary to assume that Armour & Company was guilty of negligence of the kind and character charged in the third-party complaint of the American District Telegraph Company. Therefore, the situation as presented is that the American District Telegraph Company and Armour & Company were both guilty of independent acts of negligence which combined to cause the injuries to the plaintiff, Ray Kittleson.
Rule 14(a), so far as here material, allows a defendant to move for leave as a third-party plaintiff to serve a summons and a complaint "upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff's claim against him." This Rule is a procedural rule, however, and does not give the Telegraph Company any greater rights against Armour & Company than it would otherwise have under rules of substantive law. Brown v. Cranston, 2 Cir., 1942, 132 F.2d 631, 148 A.L.R. 1178; Hills v. Price, D.C. S.C.1948, 79 F.Supp. 494; Anderson v. Kenosha Auto Transp., D.C.Minn.1946, 6 F.R.D. 265; Jeub v. B/G Foods, D.C. Minn.1942, 2 F.R.D. 238. This rule is well stated in the last cited case by Judge Nordbye, 2 F.R.D. at page 240:
It becomes necessary, therefore, in deciding whether the third-party complaint should be dismissed, to determine the substantive rights of the third-party litigants under the applicable Iowa law.
Under the Iowa law where separate and independent acts of negligence by different participants combine to produce a single injury, the negligence of the participants is regarded as being concurrent in character and both participants are jointly and severally liable to the party injured, even though ...
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N-500L Cases, In re
...337 F.2d 486, 489 (6th Cir. 1964); Vickers Petroleum Co. v. Biffle, 239 F.2d 602, 606 (10th Cir. 1956); Kittleson v. American Dist. Telegraph Co., 81 F.Supp. 25, 30 (N.D.Iowa 1948), rev'd on other grounds, 179 F.2d 946 (8th Cir. 1950). And still other federal cases expressly hold that contr......
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Blackford v. Sioux City Dressed Pork, Inc.
...the authorities which uphold the view that there is no liability over against an employer are Kittleson v. American District Telegraph Company, U.S.D.C., N.D. Dist. of Iowa, 81 F.Supp. 25; Maio v. Fahs, 339 Pa. 180, 14 A.2d 105; Hunsucker v. High Point Bending & Chair Company, 237 N.C. 559,......
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Lane v. Celanese Corp. of America
...Recourse must then be had to state law to determine the sufficiency of the third-party complaints. See also Kittleson v. American Dist. Telegraph Co., D.C., 81 F.Supp. 25. The first cause of action alleged in the third-party complaints is based upon contract. Since plaintiff's right to reco......
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