Kittleson v. American Dist. Telegraph Co.

Decision Date29 November 1948
Docket NumberCivil Action No. 403.
Citation81 F. Supp. 25
PartiesKITTLESON v. AMERICAN DIST. TELEGRAPH CO. (ARMOUR & CO., Third-Party Defendant).
CourtU.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.

GRAVEN, District Judge.

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:

"Par. 10: That the said defendant herein was negligent, and its employee John K. Cunningham was negligent in walking and attempting to walk across said skylight in the following particulars:

"(a) That they failed to observe the said glass skylight when the same was obvious and apparent.

"(b) That they failed to inspect the said skylight and that they failed to give any attention as to whether it would carry the weight of John K. Cunningham who weighed 245 pounds

"(c) That the said John K. Cunningham negligently and thoughtlessly and without consideration of the safety for persons working in the room below said skylight, walked upon said skylight and failed to use an available safe route when several were available to him."

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:

"9. That it was necessary in their performance of their contract for said employees to work upon the signalling system on the buildings of Armour & Company, and on or about the 14th day of May, 1947, they were installing or repairing the signalling system on what is known as the `Hog Kill Building' of Armour & Company, and that the only means of going to and coming from said `Hog Kill Building' was over an adjoining building of Armour & Company known as the `Hog Cutting Building', all of which was known or in the exercise of ordinary care should have been known by Armour & Company.

"10. That in order to get to the place of work on the roof of the `Hog Kill Building' the Telegraph Co. employee, John K. Cunningham, walked across the easterly slope of the corrugated roof of the `Hog Cutting Building', which the Telegraph Co. avers had none of the appearance of a skylight but had the appearance of an ordinary corrugated roof, all of which was known or in the exercise of ordinary care should have been known by Armour & Company.

"11. That it was the duty of Armour & Company, the owner of said `Hog Cutting Building', to give warning to the Telegraph Co. and its employees and advise them of any hidden hazards which lay in their path, which the said Armour & Company failed to do.

"12. That it was incumbent upon Armour & Company to furnish a safe place for the employees of the Telegraph Co. to work in the performance of the contract and if there were any hidden dangers, to advise them thereof, which the said Armour & Company failed to do.

"13. That John K. Cunningham stepped upon the corrugated roofing on the `Hog Cutting Building' and that the same had been allowed by Armour & Company to become decayed and the frame or support on which said corrugated roofing was placed broke down and the said Cunningham fell upon the plaintiff, causing such injuries to the plaintiff as he sustained.

"14. That the said Armour & Company was further negligent in that it allowed an accumulation of dirt and cement dust over the roof of the said `Hog Cutting Building' so that it was impossible to detect the composition of the corrugated roofing.

"15. That there were numerous wires on the roof of the `Hog Cutting Building' to the south of the corrugated roofing which made it difficult, if not impossible, to cross the said roof without crossing the corrugated roofing of the `Hog Cutting Building'.

"16. That the entire conduct of John K. Cunningham, employee of the Telegraph Co., of which the plaintiff in his petition complains in Par. 10 thereof, was due to the primary negligence of Armour & Company in its failure to furnish the Telegraph Company's employees a safe place to work, and further due to its having a network of wires over the roof of the `Hog Cutting Building' so that it was necessary to go over the corrugated roofing which the plaintiff claims was a skylight, and was further due to the allowing of the framework on which the alleged skylight was placed to become rotted and in decay, and further to warn the employees of the Telegraph Co., particularly John K. Cunningham, of the hidden danger which lurked in said roof."

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:

"That the rights over and against Swift and Company, which B/G Foods may have by reason of any loss sustained by it, must be governed by the substantive laws of this State is entirely clear. The invoking of the third-party procedural practice must not do violence to the substantive rights of the parties."

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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4 cases
  • N-500L Cases, In re
    • United States
    • U.S. Court of Appeals — First Circuit
    • September 28, 1982
    ...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......
  • Blackford v. Sioux City Dressed Pork, Inc.
    • United States
    • Iowa Supreme Court
    • December 11, 1962
    ...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,......
  • Lane v. Celanese Corp. of America
    • United States
    • U.S. District Court — Northern District of New York
    • October 26, 1950
    ...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......
  • American Security & Trust Co. v. Garnett
    • United States
    • U.S. District Court — District of Columbia
    • December 7, 1948

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