McClish v. Niagara Machine & Tool Works

• Citation: 266 F. Supp. 987
• Decision Date: 29 March 1967
• Docket Number: No. IP 65-C-540.,IP 65-C-540.
• Court: United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
• Parties: Don McCLISH, Plaintiff, v. NIAGARA MACHINE & TOOL WORKS and Allen-Bradley Co., Inc., Defendants. NIAGARA MACHINE & TOOL WORKS, Third-Party Plaintiff, v. ALLEN-BRADLEY CO., Inc., and Harper J. Ransburg Co., Inc., Third-Party Defendants.

266 F. Supp. 987

Don McCLISH, Plaintiff, v. NIAGARA MACHINE & TOOL WORKS and Allen-Bradley Co., Inc., Defendants.

NIAGARA MACHINE & TOOL WORKS, Third-Party Plaintiff, v. ALLEN-BRADLEY CO., Inc., and Harper J. Ransburg Co., Inc., Third-Party Defendants.

No. IP 65-C-540.

United States District Court S. D. Indiana, Indianapolis Division.

March 29, 1967.

Alan H. Lobley, Indianapolis, Ind., for plaintiff.

Harry A. Wilson, Jr., Indianapolis, Ind., for Niagara.

Murray, Stewart, Irwin & Gilliom, Indianapolis, Ind., for Allen-Bradley.

David B. Lockton, Indianapolis, Ind., for Ransburg.

MEMORANDUM OPINION

DILLIN, Judge.

This cause comes before the court for ruling on the motion of one of the third party defendants, Harper J Ransburg Company, Inc. ("Ransburg") for summary judgment dismissing the third party complaint of Niagara Machine and Tool Works ("Niagara") for failure to state a claim upon which relief may be granted as to it.

The amended complaint states a claim for personal injuries against Niagara and Allen-Bradley Co. ("Allen"), based upon the alleged breach of implied warranties that a press and foot switch were free from defects and not unreasonably dangerous to the user (plaintiff). Plaintiff is employed by Ransburg, which purchased the press and foot switch from Niagara. Niagara, in turn, purchased the foot switch from Allen. Plaintiff has been paid benefits by Ransburg under the Indiana Workmen's Compensation Act.¹

The third party complaint alleges a duty on Ransburg to indemnify Niagara as to any judgment recovered by plaintiff against it, alleging (1) that the proximate cause of the accident was negligence on the part of Ransburg, (2) that the press was manufactured, designed, and equipped pursuant to Ransburg's instructions, (3) that Ransburg represented to Niagara that the press would be operated pursuant to certain safety procedures and with the use of certain safety equipment which would render it safe, and (4) that it sold the press and switch relying on Ransburg's representations that they were appropriate for its intended work. We disregard Niagara's second contention, as above summarized, as being completely destroyed by its sworn answers to plaintiff's interrogatories, in which it states that the press was designed by its engineering department and the foot switch by Allen. Such answers overcome the allegations of Niagara's pleading.²

As to its other allegations, it is obvious that Niagara contends either that (a) the negligence of Ransburg was the sole proximate cause of the accident, or (b) both Niagara and Ransburg were negligent. To the extent that the third party complaint may be construed as alleging negligence on the part of Ransburg to have been the sole proximate cause of the accident, it is insufficient to state a claim for indemnity. Such a contention amounts to nothing more than a claim that plaintiff has sued the wrong party, and is a complete defense to the original action, provable under a simple denial of liability. In order to determine whether a claim is stated on the theory that both Niagara and Ransburg were negligent, but that Ransburg is liable over to Niagara, we must examine the common law of Indiana regarding indemnity.

The right to indemnity and the corresponding obligation to indemnify generally spring from contract, express or implied, and in the absence of an express or implied contract a right to indemnity generally does not exist.³ When indemnity is the subject of an express contract, Indiana takes the broad view that parties may lawfully bind themselves to indemnify against future acts of negligence, whether the negligence indemnified against be that of the indemnitor or his agents or that of the indemnitee or his agents.⁴ In the absence of express contract, however, Indiana follows the general rule that there can be no contribution⁵ or indemnity⁶ as between joint tort-feasors. There are, however, well recognized exceptions to such general rule, wherein the right to indemnity is implied, and so the question is as to whether Niagara pleads a claim falling within such an exception.

The simplest exception is presented in cases of derivative liability, where a principal or employer who has been held negligent under the doctrine of respondeat superior only because of some act of his agent or employee is allowed to recover indemnity from the one guilty of the actual negligent act.⁷ Such right is founded upon the separate duty of the agent or employee running to the principal or employer to use due care in the performance of his duties. Similarly, in the reverse situation where a servant performs an act not openly or apparently wrongful at the command of his master, he has a right to indemnity from the master.⁸

Another exception is that one who is constructively liable to a third person by operation of some special statute or rule of law which imposes upon him a non-delegable duty, but who is otherwise without fault, is entitled to indemnity from one who directly causes the harm. So it has been held in numerous Indiana cases that a municipality, charged with the non-delegable duty of maintaining its streets and sidewalks in a reasonably safe condition for travel, may have indemnity against the tortfeasor whose wrongful act or omission actually created the hazard which resulted in liability thus being imposed upon the municipality.⁹ It may be said here that the indemnitor is obigated to the municipality for breach of its separate duty to the municipality not to create a nuisance in the public way. It is extremely important to note, however, that when the municipality is itself charged with, and found to have been guilty of a negligent act or omission which contributed to cause the injury, indemnity is denied as against one guilty of a concurrent act of negligence. City of Gary v. Bontrager Construction Co., 1943, 113 Ind.App. 151, 47 N.E.2d 182.

Similarly, as between the supplier of a defective product which does harm to an ultimate purchaser or user and the merchant who stocks and sells it as received, the merchant is entitled to indemnity from the supplier. The merchant is liable to the user for breach of his implied warranty of merchantability, and the supplier is liable to the merchant for breach of precisely the same warranty running to the merchant.¹⁰ But again, the right of indemnity is destroyed if the merchant knew, or should have known of the defect before reselling the product.¹¹

In the case of J. C. Penney Company v. Westinghouse Electric Corporation, 7 Cir., 1965, 351 F.2d 561, 6 Ind.Dec. 625, a minor obtained a judgment against both Penney and Westinghouse for personal injuries caused by an improperly maintained escalator in the Penney store, and judgment over was entered against Westinghouse in favor of Penney. Westinghouse had undertaken by written contract to inspect, service and maintain the escalator in a proper and safe operating condition, and assumed liability on account of accidents except those "directly due" to the negligence of Penney. In affirming the judgment of indemnity, based on the contract, the Court of Appeals pointed out that the judgment against Penney was based on its non-delegable duty to keep its store premises in a reasonably safe condition, but that it was otherwise free from fault.

So it may be seen that concurrent negligence on the part of one claiming the right to indemnity takes the case out of the exception, and prohibits indemnity. Niagara argues that this is not necessarily so, citing cases from other jurisdictions which make a distinction between so-called "active" and "passive" negligence, and permit indemnity in favor of parties found guilty only of "passive" negligence. This concept creates a separate and distinct exception to the general rule. But any distinction between "active" and "passive" negligence has been specifically repudiated in Indiana,¹² and we would therefore not be justified in attempting to create an exception based upon a concept which the Indiana courts have...