Logan v. McMillen, CHENOWETH-KERN

• Decision Date: 20 October 1953
• Docket Number: No. 48351,CHENOWETH-KERN,48351
• Parties: LOGAN v. McMILLEN et al. (ELEVATOR SERVICE et al. third-party defendants.)
• Court: Iowa Supreme Court

Page 498

60 N.W.2d 498

244 Iowa 1328

LOGAN v. McMILLEN et al. (CHENOWETH-KERN ELEVATOR SERVICE et al. third-party defendants.)

No. 48351.

Supreme Court of Iowa.

Oct. 20, 1953.

Davis, Huebner & Johnson and Wessels & Wessels, of Des Moines, for appellants.

Hanson & Wheatcraft, of Des Moines, for plaintiff-appellee.

Bannister, Carpenter, Ahlers & Cooney and Lehmann, Hurlburt, Blanchard & Cless, of Des Moines, for cross-defendants-appellees.

BLISS, Justice.

The factual matters as alleged in the pleadings are that the defendant, Bolton &amp Hay, a copartnership, and the individual defendants, composing it, owned a business building in Des Moines, in which there was an elevator shaft, with elevator and the necessary operating equipment, for the use of the tenants, but not include in their leases, and over which said defendants retained control. The plaintiff, Ralph Logan, an employe of Niles-Jones, the lessee of the first floor and most of the basement of the building, while engaged in his work, approached the open door of the elevator shaft on the first floor, and, thinking the elevator was there, stepped through the open door. The elevator was not there and he fell to the bottom of the shaft and was severely injured. He brought action against the owners of the premises, and alleged in his petition various grounds of common-law, and statutory, negligence on their part.

The defendants had a written contract with a corporation, known as Chenoweth-Kern Elevator Service, to furnish monthly inspection service and lubrication for the elevator equipment.

Pursuant to the provisions of Rule 33(b) of the Iowa Rules of Civil Procedure, 58 I.C.A., defendants, after the filing of plaintiff's petition against them, and on October 21, 1952, filed a motion in the district court to bring in as third-party defendants, on the cross-petition of defendants, Chenoweth-Kern Elevator Service, and the partnership, Niles & Jones, and its individual members. A copy of the cross-petition was attached to the motion. No resistance was filed to the motion and it was granted on November 15, 1952. The cross-petition, in four divisions, was filed November 28, 1952.

Rule 33 entitled 'Cross-Petitions' is as follows:

'(a) Against Coparties. * * *.

'(b) Against New Parties. When a defendant to a petition, cross-petition or counterclaim will, if held liable thereon, thereby be entitled to a right of action against one not already a party, he may move to have such party brought in, to the end that the rights of all concerned may be determined in one action. * * *'

Division L of the cross-petition applied to Chenoweth-Kern Elevator Service. It was stated therein that plaintiff's petition: in subparagraph B of paragraph 9, alleged, in substance, that defendants so negligently maintained the interlock device of the elevator that it became ineffective to prevent the opening of the hoistway doors when the car was not standing at the landing door; and also neglected and refused to replace a burned out light within the elevator car, thereby making it impossible to ascertain when the car was opposite a landing door; in subpar. C of par. 9, lack of inspection was alleged; in subpar. D of par. 9, negligence was alleged in defendants' failure to correct specified dangerous conditions about the elevator known to them. It was also alleged in Div. I of the cross-petition that at the time of the injury to plaintiff the inspection service agreement with the Elevator Service was in effect, and by reason thereof said corporation, third-party defendant, had the primary duty with regard to the inspection of the elevator, and if, in the trial of the case, said allegations in subparagraphs B, C, and D are submitted to the jury, and it should return a verdict for plaintiff against the defendants it would be because of the primary negligence of the Chenoweth-Kern Elevator Service as alleged in said subparagraphs, and because thereof said corporation would be liable over to defendants for such verdict. Defendants in said Div. I prayed judgment for recovery over against Chenoweth-Kern Elevator Service for any judgment plaintiff might recover against them based on said specified allegations of negligence.

Division II of the cross-petition was directed to the third-party defendants, Niles-Jones, and its individual members. It was stated therein, that in subparagraph A of paragraph 9 of plaintiff's petition it was alleged that defendants were negligent in failing to have the elevator shaft, elevator car and opening, and the area in the vicinity properly lighted. It was stated in this Division that said alleged improperly lighted places were all in the exclusive control and custody of said Niles-Jones and its members, and any improper lighting was their primary negligence, and for any verdict based thereon in favor of plaintiff against defendants, the latter were entitled to judgment for recovery over against third-party defendants. For which judgment defendants prayed.

Division III of the cross-petition also applied to the third-party defendants, Niles & Jones et al. It was stated therein that their negligence was the proximate cause of any injury to plaintiff, in that their employees tampered with the interlocking mechanism of the elevator and 'blocked it off' manually so that it failed to operate properly, and that such negligence was primary on the part of said third-party defendants, and for any judgment in favor of plaintiff based on such primary negligence the defendants will be entitled to judgment over against Niles-Jones and its members.

Division IV of the cross-petition alleged that at the time and place of plaintiff's injury 'all instrumentalities causing it were under the exclusive control, custody, supervision and domination of these third-party defendants', Niles & Jones, and the individual members composing it, 'and that said injuries could not have occurred without primary negligence' on their part; and for any judgment plaintiff may recover against defendants because of the negligence referred to in Divisions II, III and IV of the cross-petition, the defendants prayed judgment over against said Niles & Jones et al.

On December 24, 1952, Niles & Jones and its members filed their motion to dismiss the cross-petition as to them, alleging in Division I thereof that Divisions II, III and IV of the cross-petition are not permitted under Rule 33(b) or 'under any statute or Rule of Civil Procedure and state no cause of action recognized in Iowa practice', for the following reasons, towit: 'The action of plaintiff is for damages for personal injury alleged to have been sustained by reason of negligence of defendants as stated therein. Said Divisions of Defendants' Cross-Petition against these third-party defendants are for indemnity or recovery over in the event plaintiff is successful in his suit against defendants. In that event Defendants will not 'thereby be entitled to a right of action' against these third-party defendants as in said rule provided. One of the basic elements of a cause of action for indemnity is payment by defendants of the plaintiff's demand. Defendants cannot and will not automatically be vested with an indemnity cause of action against these third-party defendants if they are 'held liable' on the petition of plaintiff as in said rule provided. Mere success of plaintiff in holding defendants liable will not entitled defendants to an indemnity right of action.'

On December 27, 1952, the Chenoweth-Kern Elevator Service filed motion to dismiss the cross-petition as to it. Division I of the motion was the same as Division I of the motion to dismiss the cross-petition as to Niles-Jones et al. There were other divisions in the motions to dismiss. But they need not be considered, since the trial court stated it would not pass upon them, as it had sustained the motions to dismiss on the first Division of said motions.

The defendants' answer, filed January 9, 1953, admitted the allegations of the petition with respect to the relationship of those therein mentioned, the ownership of the building, the existence of the elevator and manner of construction, but denied that the elevator shaft, car, doors, machinery, and other equipment were not included in any leases, and denied that defendants retained control over them. All other allegations were denied.

In sustaining the motions to dismiss, the Court, after quoting Rule 33(b), said:

'Would plaintiff's success without more automatically give defendants causes of action against these third-party defendants as this rule clearly requires to permit its use? I cannot find that it would. Plaintiff charges defendants with certain statutory and common law duty violations. Defendants charge the third- party defendants with violations of some of these same duties such as inspection as to Chenoweth-Kern and the maintenance of improper lighting around the elevator platform as to Niles-Jones, but other specifications in plaintiff's petition such as statutory violations as to safety equipment are not reasserted against the third-party defendants whereas new alleged duty violations such as that of Chenoweth-Kern to defendants by the agreement pleaded, and other employee tampering by Niles-Jones are alleged.

'If plaintiff were successful against defendants, the proof necessary therefor would not and could not be such as to thereby permit defendants to, without more in the way of pleading and evidence, recover against the third-party defendants.

'But the principal compellant of the court to rule as it does is that a basic element of the action of indemnity or restitution is not present when plaintiff is successful and defendants are 'held liable thereon.' This is the element of payment of such judgment by the defendants. There is no cause of action over for indemnity or recovery over until defendants have paid plaintiff's judgment * * *. Liability and payment create the cause of action. Being held...