Pelkey v. State Sales, Inc.
| Decision Date | 23 November 1962 |
| Docket Number | 22396.,No. 22395,22395 |
| Citation | 210 F. Supp. 924 |
| Parties | Raymond L. PELKEY, Helen Pelkey, Plaintiffs, v. STATE SALES, INC., Defendant and Third-Party Plaintiff, v. VINCENT CHEVROLET, INC. Third-Party Defendant. |
| Court | U.S. District Court — Western District of Michigan |
George Menendez, Detroit, Mich., for plaintiffs.
Leroy G. Vandeveer, Vandeveer, Haggerty, Doelle, Garzia, Tonkin & Kerr, Detroit, Mich., for defendant and third-party plaintiff.
John Kruse, Alexander, Buchanan & Conklin, Detroit, Mich., for third-party defendant.
This proceeding is before the Court on a motion of Vincent Chevrolet, Inc., the third-party defendant, to dismiss the third-party complaint of the defendant, State Sales, Inc., that arises out of a case in which the plaintiffs allege that the defendant, acting through one of its agents, negligently operated a certain station wagon which ran into a pickup truck driven by one of the plaintiffs. The specific acts of negligence charged to defendant in the complaint consist of operating its vehicle with improper brakes, keeping an improper lookout, maintaining an unlawful and unreasonable speed, failing to check the speed at an intersection, not seeing and obeying a red light, and recklessly operating a motor vehicle.
The third-party complaint alleges that the accident occurred shortly after the third-party defendant delivered the station wagon to the alleged agent of the defendant, containing defective brakes, in breach of the former's duties to inspect the vehicle, to discover the defect, to correct it, and to warn the latter of any latent defects before selling or delivering such station wagon to its agent. The third-party complaint also contains allegations that the third-party defendant breached certain express and implied warranties.
Rule 14, F.R.Civ.P., provides for impleader by a defendant against a person "who is or may be liable to him for all or part of the plaintiff's claim against him." The substantive rights of a third-party plaintiff must be determined under the appropriate state law, 3 M.F.P., pp. 409-410, and since the accident occurred in Michigan, the law of that State applies.
In Michigan, there is no common law right to contribution or indemnity between active joint tort-feasors. Roe v. Bryant and Johnston Co. (E.D.Mich., 1961), 193 F.Supp. 804. However, where one alleged wrongdoer is only guilty of passive negligence, and another one is allegedly guilty of active negligence, the latter will be held to be an indemnifier of the former. Id.
Under Michigan law, passive negligence for which indemnification for liability is permitted does not mean actual negligence, regardless of chronological sequence or whether the act is one of omission or commission. Detroit Edison Co. v. Price Brothers Co. (C.A.6), 249 F.2d 3. In conformity with this principle, it has been held that where two parties, both corporations, negligently maintained their respective wires, in that one party...
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South Dakota Bldg. Authority v. Geiger-Berger Associates, P.C.
...fault when he has not participated in the commission of the tort and his liability arises by operation of law. Pelkey v. State Sales, Inc., D.C.Mich., 210 F.Supp. 924." Degen, 200 N.W.2d at 137. If, however, "a person seeking indemnity personally participates in an affirmative act of neglig......
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Ianire v. University of Delaware
...at common law, the right of indemnity between passive and active tort-feasors does have common law origins. Pelkey v. State Sales, Inc. 210 F.Supp. 924 (D.C.Mich.); Perlbinder v. D'Aquilla Bros. Contracting Co., 12 Misc.2d 790, 177 N.Y.S.2d 878 (1958). The common law of England, including t......
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Degen v. Bayman, 10888
...fault when he has not participated in the commission of the tort and his liability arises by operation of law. Pelkey v. State Sales, Inc., D.C.Mich., 210 F.Supp. 924. As applied to product liability, see Annotation 28 A.L.R.3d Conversely, before a joint tortfeasor can shift one hundred pre......
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DIE CUTTER REPAIR SERVICE v. King Seeley Thermos
...of Torts, § 51 (4th ed. 1971). Michigan, however, has not construed the term passive negligence so liberally. Pelkey v. State Sales, Inc., 210 F.Supp. 924, 925-26 (E.D.Mich.1962). 2 Die Cutter asserts that by virtue of the settlement of the primary action, its active negligence, if any, was......