Niece v. Sears, Roebuck & Co.
Decision Date | 14 November 1968 |
Docket Number | Civ. No. 68-C-50. |
Citation | 293 F. Supp. 792 |
Court | U.S. District Court — Northern District of Oklahoma |
Parties | Warren NIECE, a minor, by and through Jim Niece, his father and next friend, and Jim Niece, individually, Plaintiffs, v. SEARS, ROEBUCK & CO., Defendant and Third-Party Plaintiff, v. WESTINGHOUSE ELECTRIC CORPORATION, Third-Party Defendant. |
Thomas R. Brett, of Hudson, Wheaton & Brett, Tulsa, Okl., for plaintiff.
David R. Milsten, of Milsten, Milsten & Morehead, Tulsa, Okl., for defendant and third-party plaintiff.
Donald G. Hopkins, of Rucker & Tabor, Tulsa, Okl., for third-party defendant.
Sears as Third-Party Plaintiff alleges alternative causes of action against Westinghouse, the Third-Party Defendant in the Third-Party Complaint. Westinghouse has moved to Dismiss the Third-Party Complaint. In the first cause of action, apparently under a theory of indemnity, Sears states that any injury to Plaintiff was caused by the sole negligence of Westinghouse, and if Plaintiff recovers a judgment from Sears because of such negligence, then Westinghouse is liable to Sears. The second cause of action is based on Westinghouse's alleged breach of its contract of maintenance which it had with Sears at the time of the accident.
Westinghouse takes the position in its Motion to Dismiss that Sears has failed to state a claim against it. It is axiomatic that the Court must take Sears' allegations against Westinghouse as true in the disposition of the Motion to Dismiss. See Tomko v. City Bank Farmers Trust Co., 3 F.R.D. 31 (D.C.N. Y.1943), a case very similar to the instant one.
The rule regarding indemnity has been most recently stated in Porter v. Norton-Stuart Pontiac-Cadillac of Enid, 405 P.2d 109 (Okl.1965), where the court quoted from 27 Am.Jur. Indemnity § 18 ( ):
405 P.2d at p. 113.
This rule has been long recognized by the Tenth Circuit. Staples v. Central Surety & Ins. Corporation, 62 F.2d 650 (10 Cir. 1932). It was stated:
"It is a well-recognized rule, supported by a great weight of authority, that, where one has been subjected to liability, and has suffered loss thereby, on account of the negligence or wrongful act of another, the one has a right of action against the other for indemnity." 62 F.2d at p. 653.
Thus, it is clear that Sears has a properly stated claim for indemnity under its first cause of action against Westinghouse.
As to the second cause of action, it appears to the Court that Sears has properly stated a claim for breach of contract. Westinghouse argues that Sears has no proof of a breach of contract by reason of any negligence of Westinghouse. This is immaterial. The function of a motion to dismiss is to test the law of a...
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...will be tested at trial. Davis H. Elliot Co. v. Caribbean Utilities Co., Ltd., 513 F.2d 1176, 1182 (6th Cir.1975); Niece v. Sears, 293 F.Supp. 792, 794 (N.D.Okla.1968). Rule 12(b)(6) motions are, however, viewed with disfavor and should not be granted unless it appears beyond doubt that the......
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White v. White, 67
...(1976). "The function of a motion to dismiss is to test the law of a claim, not the facts which support it." Niece v. Sears, Roebuck & Co., 293 F.Supp. 792, 794 (N.D.Okla.1968) (applying Federal Rule 12(b)(6)). Resolution of evidentiary conflicts is thus not within the scope of the Rule. We......
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...of the statement of the claim for relief; i. e., to test the law of the claim, not the facts that support it. Niece v. Sears, Roebuck & Co.,293 F.Supp. 792 (N.D. Okla. 1968). Also, in considering whether a complaint states a cause of action upon which relief may be granted, the court must a......