Putvin v. Buffalo Elec. Co.

• Decision Date: 09 April 1959
• Citation: 158 N.E.2d 691,5 N.Y.2d 447,186 N.Y.S.2d 15
• Parties: , 158 N.E.2d 691 Julia PUTVIN, as Administratrix of the Estate of Percy J. Putvin, Deceased, Plaintiff, v. BUFFALO ELECTRIC CO., Inc., et al., Defendants. JOSEPH DAVIS, INC., Defendants and Third-Party Plaintiffs-Appellants, v. WALLACE & TIERNAN, INC., Third-Party Defendant-Respondent (and 10 other actions).
• Court: New York Court of Appeals Court of Appeals

Page 15

186 N.Y.S.2d 15

5 N.Y.2d 447, 158 N.E.2d 691

Julia PUTVIN, as Administratrix of the Estate of Percy J.

Putvin, Deceased, Plaintiff, v. BUFFALO ELECTRIC CO., Inc., et al., Defendants.

JOSEPH DAVIS, INC., Defendants and Third-Party Plaintiffs-Appellants, v. WALLACE & TIERNAN, INC., Third-Party Defendant-Respondent

(and 10 other actions).

Court of Appeals of New York.

April 9, 1959.

Esmond D. Murphy, Buffalo, for appellants.

Hugh McM. Russ and Ralph W. Larson, Buffalo, for respondent.

CONWAY, Chief Judge.

All 11 of the above-entitled actions arise out of an explosion which took place on the premises of Novadel-Agene Corporation, now known as Wallace & Tiernan, Inc., in Tonawanda, New York, on September 23, 1953. Wallace & Tiernan, Inc., owns and operates a chemical plant on its premises. Each of the administratrices represents a decedent who was an employee of Wallace & Tiernan, Inc., at the time of the explosion and each of the plaintiffs in the personal injury actions was so employed at the time of the explosion.

In Action No. 1 (Putvin) the complaint, after identifying the parties, alleges that the defendants Joseph Davis, Inc., and Davis Refrigeration Co., Inc., were performing work and supplying materials at and around the chemical plant on September 23, 1953; that the work was being performed by their agents, servants or employees in the course of their regular employment; that plaintiff's intestate was lawfully upon the premises; and that, as a result of the negligence of the defendants, plaintiff's intestate sustained severe and painful injuries from which he died.

The allegation of negligence appears in paragraph 'Eleventh' of the complaint which reads: 'That as a result of the negligence and carelessness of the employees of the defendants herein, in the performance of their work, as aforesaid, and in the handling of the materials used in connection with such work, and without any fault or lack of care on the part of the plaintiff's intestate contributing thereto, a blast, explosion and fire resulted in and about said premises.'

In Action No. 2 (Holzman) the complaint, after identifying the parties, alleges that on or about September 23, 1953 the defendant Joseph Davis, Inc., was engaged in the performance of certain plumbing and steamfitting work at the chemical plant; that the plaintiff's intestate on that day while in the employ of the Lucidol Division, Novadel-Agene Corporation, now known as Wallace & Tiernan Corporation, was lawfully and properly working upon the premises of that company and received serious injuries which resulted in his death.

The allegation of negligence appears in paragraphs 'Seventh' and 'Eighth' of the complaint which read:

'Seventh: This accident to the plaintiff-intestate and the injuries and death resulting therefrom were caused solely by the negligence of the defendants and without any negligence or want of care on the part of the plaintiff's intestate in any wise contributing thereto.

'Eighth: This accident to the plaintiff's intestate and the injuries and death resulting therefrom were caused solely by the negligence of the defendants in the conduct of the plumbing, steamfitting, electrical and other work being done on the aforementioned premises on September 23rd, 1953, and in the failure of the defendants to supply the plaintiff's intestate with a safe place to work.'

The record before us contains a stipulation by the parties that 'for the purposes of any appeal to the Appellate Division or to the Court of Appeals it will not be necessary to print the complaints and third-party complaints in any other actions than Action No. 1 and No. 2'. We assume therefore, that the allegations in the complaints in the 10 other actions are the same as those in Actions Nos. 1 and 2.

The titles of the various actions disclose that the Buffalo Electric Co., Inc., was originally a party defendant along with Joseph Davis, Inc., and Davis Refrigeration Co., Inc. Like these two corporations, Buffalo Electric impleaded Wallace & Tiernan, Inc. In Action No. 1 Wallace & Tiernan, Inc., moved to dismiss the third-party complaint of Buffalo Electric. Special Term denied the motion but the Appellate Division unanimously reversed and granted it (3 A.D.2d 805, 160 N.Y.S.2d 386).

Similarly, in the case at bar, Wallace & Tiernan, Inc., moved to dismiss the third-party complaints of Davis. As with the Buffalo Electric third-party complaint, Special Term denied the motion but the Appellate Division unanimously reversed and granted it. In so doing, it rendered the following memorandum: 'The appellant concedes that the primary complaint in this action and the third party complaint are identical with those passed upon by this court in Putvin v. Buffalo Elec. Co., 3 A.D.2d 805, 160 N.Y.S.2d 386. The several actions arise out of the same state of facts which relate to an explosion on the premises of the third party defendant. In our prior decision we determined that in our view of the complaint the plaintiffs charge active and primary negligence against the defendant-third-party-plaintiff and recovery could only be had upon such proof. Therefore the defendant in a third-party action could not seek indemnification from the third-party defendant and its complaint was dismissed. Upon a reconsideration of our prior decision we adhere thereto.' (4 A.D.2d 1009, 167 N.Y.S.2d 866.)

Before proceeding to a treatment of the precise issue here presented, we think it advisable to recall to mind certain basic principles and considerations concerning third-party practice.

Section 193-a of the Civil Practice Act, entitled 'Third-party practice; courts to which applicable', provides in part: '1. After the service of his answer, a defendant may bring in 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 * * *.' (Emphasis supplied.)

It will be observed that this section, in terms, authorizes the service of a third-party complaint only on one not a party to the action, i. e., one not sued by plaintiff. It is fundamental, of course, that a plaintiff in a negligence action is free to choose his defendants. Should a plaintiff sue less than all of the tort-feasors actively responsible for his injury, no impleader is possible. This is for the reason that impleader will not lie in order to secure contribution among joint tort-feasors, since such a right only arises after joint judgment has been recovered against both of them and one has paid more than his share (Civ.Prac Act, § 211-a; Fox v. Western New York Motor Lines, 257 N.Y. 305, 178 N.E. 289, 78 A.L.R. 578). If the plaintiff does not elect in the first instance to join several joint tort-feasors as codefendants, there is no right of contribution and, consequently, no right to implead pursuant to section 193-a of the Civil Practice Act.

The one sued has an indemnity action over against one not sued, hence, may implead the third party, pursuant to section 193-a, if the third party has contracted to indemnify the one sued, or if the liability of the one sued is predicated on passive negligence imposed by law and that of the third party is based on active negligence (see 2 Carmody-Wait, New York Practice, §§ 65, 66, 67, pp. 611-616). ¹ As this court pointed out in McFall v. Compagnie Maritime Belge, 304 N.Y. 314, 327-328, 107 N.E.2d 463, 470:

'(T)here is a fundamental distinction between contribution and indemnity. The right to contribution is not founded on nor does it arise from contract and only ratable or proportional reimbursement is sought in an action for contribution. In the absence of statutory provision one of several wrongdoers, who has been compelled to pay damages for the wrong committed, cannot obtain contribution from the others who participated in the commission of the wrong. Such is the rule recognized not only by the courts of this State, see, e. g., Fox v. Western New York Motor Lines, 257 N.Y. 305, 178 N.E. 289, * * * but by the Federal courts, see Union Stock Yards Co. (of Omaha) v. Chicago (Burlington, & Quincy Railroad) Co., 196 U.S. 217, 224, 25 S.Ct. 226, 227, 49 L.Ed. 453. * * *

'The common-law rule denying contribution to joint tort-feasors has been partically abrogated in this State by the enactment of section 211-a of the Civil Practice Act which authorizes contribution if two conditions exist: (1) a joint money judgment against the tort-feasors, and (2) the payment by one tort-feasor of more than his prorata share thereof. Fox v. Western New York Motor Lines, 257 N.Y. 305, 178 N.E. 289, supra.

'The right to indemnity, as distinguished from contribution, is not dependent upon the legislative will. It springs from a contract, express or implied, and full, not partial, reimbursement is sought. Where several tort-feasors are involved an implied contract of indemnity arises in favor of the wrongdoer who has been guilty of passive negligence, if there be such, against the one who has been actively negligent. The actively negligent tort-feasor is considered the primary or principal wrongdoer and is held responsible for his negligent act not only to the person directly injured thereby, but also to any other person indirectly harmed by being cast in damages by operation of law for the wrongful act.'

The right of a defendant to implead another, then, depends upon his being able to demonstrate a right to be indemnified by the one he seeks to implead. As stated in McFall (supra), where several tort-feasors are involved, an implied contract of indemnity arises in favor of the wrongdoer who has been guilty of passive negligence, if there be such, against the one who has been actively negligent. So it is that a claim over against a third person charging the third person with active negligence will be allowed if the original complaint can reasonably be interpreted as including an allegation of passive negligence on the part of the defendant (see,...