Security Insurance Co. of New Haven v. Johnson, No. 6166.

• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)
• Writing for the Court: MURRAH, , BREITENSTEIN, Circuit , and CHRISTENSON
• Citation: 276 F.2d 182
• Parties: SECURITY INSURANCE COMPANY OF NEW HAVEN, Appellant, v. Virgil H. JOHNSON and Rex Bratcher, d/b/a Johnson-Bratcher Construction Co., Appellees.
• Docket Number: No. 6166.
• Decision Date: 24 March 1960

276 F.2d 182 (1960)

SECURITY INSURANCE COMPANY OF NEW HAVEN, Appellant,
v.
Virgil H. JOHNSON and Rex Bratcher, d/b/a Johnson-Bratcher Construction Co., Appellees.

No. 6166.

United States Court of Appeals Tenth Circuit.

February 15, 1960.

Rehearing Denied March 24, 1960.

276 F.2d 183

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276 F.2d 184

William P. Thompson, Wichita, Kan. (A. W. Hershberger, Richard Jones, H. E. Jones, Jerome E. Jones, Robert J. Roth, William R. Smith, Wichita, Kan., on the brief), for appellant

Malcolm Miller, Wichita, Kan. (George B. Powers, Carl T. Smith, John F. Eberhardt, Stuart R. Carter, Robert C. Foulston, Robert N. Partridge, Robert M. Siefkin, Richard C. Harris and Gerald Sawatsky, Wichita, Kan., on the brief), for appellees.

Before MURRAH, Chief Judge, BREITENSTEIN, Circuit Judge, and CHRISTENSON, District Judge.

CHRISTENSON, District Judge.

Security Insurance Company of New Haven, appellant herein, sought to recover as plaintiff in the United States District Court for the District of Kansas from appellees Virgil R. Johnson and Rex Bratcher, doing business as Johnson-Bratcher Construction Co., the amount it theretofore had paid in settlement of a state court judgment entered against the Missouri Pacific Railroad Company under the Federal Employers' Liability Acts, 45 U.S.C.A. § 51, for the death of one Kennedy, a railroad worker.

Subrogated to the rights of the railroad company by this payment, liability for which it had assumed under a contract with the Morrison Grain Company, appellant contended in the federal court that appellees' "active" negligence in installing a grain dump under the railroad track had been the basis of the recovery against the railroad in the state court and, since the railroad's fault had been only "passive", the right of indemnity existed. This theory was presented under the first claim of the complaint. In its second claim appellant asserted that it, as subrogee of the Morrison Grain Company, was entitled to damages by reason of alleged breaches of the agreement between Morrison Grain Company and the appellees.

The trial court granted summary judgment in favor of the appellees and dismissed the complaint. Its jurisdiction, based on diversity of citizenship, was unquestionable.

Appellants have taken a timely appeal to this court, maintaining that appellees were not entitled to judgment as a matter of law, but that a trial on the merits was required to resolve the issues between the parties. That if there were genuine issues of material fact unresolved on the record before the trial court this must be so, is a proposition so repeatedly exemplified and documented in prior decisions of this court that it now need be only mentioned.

The appellant insurance company and the contractors-appellees were the only parties to the action in the federal court. But recourse must be had to the following background circumstances if the problems between them and the welter of names and relationships necessarily involved in the foregoing statement of the case are to be meaningful.

The appellees contracted to build an elevator for the Morrison Grain Company in Saline County, Kansas. The contractors' obligation included proper installation of a pit or hopper beneath a side track of the Missouri Pacific Railroad Company for use by Morrison as a grain dump. The railroad required a side track agreement or lease from the grain company indemnifying it against liability for personal injuries to its workmen, or others, in any manner resulting from the construction or operation of the facilities under the track. Kennedy, an employee of the railroad, was killed when he fell into the partially uncovered pit. Thompson, trustee for the railroad, was sued by Kennedy's administratrix, in the District Court of Sedgwick County, Kansas. The railroad sought to interplead appellees and to secure indemnification by reason of their claimed primary negligence. Appellees' motion to quash service of summons was granted by the state

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trial court, and sustained on appeal. Kennedy v. Thompson, 179 Kan. 532, 297 P.2d 210. The case was tried between Kennedy's administratrix and the railroad, and was defended on behalf of the railroad by the present appellant because of the contractual obligation of its assured, the grain company. The action culminated in a substantial judgment against the railroad company, which appellant paid, taking a subrogation receipt therefor

It is not questioned that appellant became subrogated to the railroad's rights, if any there were, against the appellees for indemnity.

The general rule is that, in the absence of express contract, there is no contribution between joint tort-feasors. But where they are not in pari delicto, and their negligence is substantially different not merely in degree but in character, it is generally recognized that indemnity may be awarded. Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712; United States v. Acord, 10 Cir., 1954, 209 F.2d 709, certiorari denied 347 U.S. 975, 74 S.Ct. 786, 98 L.Ed. 1115; Peak Drilling Co. v. Halliburton Oil Well Cement Co., 10 Cir., 1954, 215 F.2d 368; Thomas v. Malco Refineries, Inc., 10 Cir., 1954, 214 F.2d 884; Lee Way Motor Freight v. Yellow Transit Fr. Lines, 10 Cir., 1957, 251 F.2d 97.

Concentration in the arguments on the active-passive idea must not becloud the more fundamental basis of the doctrine which, as demonstrated by the authorities cited above, has been found to have application also by reason of otherwise described differences turning upon primary and secondary liability, actual fault as distinguished from that which is imputed or constructive, knowledge or lack of knowledge, or the nature of the respective duties to the persons injured or between the parties charged.¹ As historically traced by the Supreme Court in the Washington Gaslight Co. case, such distinctions had their roots in concepts of relative delinquency or culpability. The fundamental limitation as applied by this court in United States v. Acord, supra, is that the character of the negligence must be essentially different; and, of course, indemnification must be rationally justified upon equitable considerations.

Liability to indemnify must be determined in accordance with the laws of the place where the acts or omissions giving rise to it occurred, which in this case was Kansas. United States v. Acord, supra. The rule that there can be no contribution between joint tort-feasors is there recognized. Rucker v. Allendorph, 102 Kan. 771, 172 P. 524. The exception to that rule allowing indemnity under certain circumstances also is recognized in Kansas. Counsel for appellees states that the Kansas Supreme Court has not decided any case involving purely the "active-passive" relationship, and we have found none in that court presenting a fact situation precisely in point. But see Chicago, Rock Island & Pacific R. Co. v. United States, D.C.D. Kan.1955, 129 F.Supp. 637.

It has been held by the Kansas Supreme Court, however, that an employer may be entitled to indemnification from his employee when called upon to respond to the claims of a third party under the doctrine of respondeat superior, Fenly v. Revell, 170 Kan. 705, 228 P.2d 905; and that a municipality liable to an injured pedestrian by reason of its non-delegable duty to maintain its streets and walks is entitled to indemnity from the abutting property owner causing the dangerous condition. City of Topeka v. Central Sash & Door Co., 97 Kan. 49, 154 P. 232; City of Fort Scott v. Pen

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Lubric Oil Co., 122 Kan. 369, 252 P. 268; City of McPherson v. Stucker, Stucker & Strachan, 129 Kan. 262, 282 P. 703

We perceive no real difference in the position of the railroad, or its subrogee here, and that of a municipality entitled in Kansas to indemnity from an abutting property owner actively creating a hazard which the municipality negligently fails to discover and correct. The inescapable basis and rationale of the Kansas decisions seem applicable to the case at bar. Both the carrier and the municipality would have had the duty to use reasonable care to discover the unsafe or defective condition.

Appellant has sought to draw a distinction between the two classes of cases by referring to the duty of the municipality as "non-delegable." Thus was the...