Slechta v. Great Northern Railway Company

• Decision Date: 10 January 1961
• Docket Number: Civ. No. 1148.
• Citation: 189 F. Supp. 699
• Parties: Marvin SLECHTA, Plaintiff, v. GREAT NORTHERN RAILWAY COMPANY, Defendant and Third Party Plaintiff, v. BARTLETT & COMPANY, GRAIN, Third Party Defendant.
• Court: U.S. District Court — Northern District of Iowa

189 F. Supp. 699

Marvin SLECHTA, Plaintiff, v. GREAT NORTHERN RAILWAY COMPANY, Defendant and Third Party Plaintiff, v. BARTLETT & COMPANY, GRAIN, Third Party Defendant.

Civ. No. 1148.

United States District Court N. D. Iowa, W. D.

January 10, 1961.

John W. Gleysteen and Robert R. Eidsmoe (of Harper, Gleysteen & Nelson), Sioux City, Iowa, for plaintiff.

Wiley E. Mayne and D. C. Shull (of Shull, Marshall, Mayne, Marks & Vizintos), Sioux City, Iowa, for defendant and third party plaintiff.

Frank Jacobs of Sifford & Wadden, Sioux City, Iowa, for third party defendant.

MICKELSON, District Judge.

The plaintiff, Marvin Slechta, was employed by Bartlett & Company, Grain, hereinafter referred to as Bartlett, at its Sioux City, Iowa, grain elevators. Slechta suffered personal injuries during the course of his employment when he was thrown from a moving boxcar onto the ground. At the time of the accident, which occurred on December 2, 1957, Bartlett was engaged in moving an empty boxcar on the spur track which was used by Bartlett as a part of its grain elevator operation. Bartlett normally moved empty boxcars in the following manner: the empty cars were moved from the loading and unloading shed by Bartlett employees, who would pull the cars with a pickup truck by use of a cable. After the car was set in motion in this manner, the cable was disengaged and the boxcar was either allowed to roll to the desired location on the spur track or was stopped by application of the handbrake.

On this particular occasion, the boxcar was not brought to a stop, but struck the wheel stops at the end of the spur track, and Slechta, who was on the box-car for the purpose of applying the hand-brake, was thrown to the ground and sustained severe personal injuries.

Bartlett's liability to its employee, Slechta, was governed by the provisions of the Iowa Workmen's Compensation Act, ch. 85, Code of Iowa 1956, I.C.A. Slechta received workmen's compensation benefits for his injuries. The Iowa Workmen's Compensation Act allows an injured employee to recover compensation under the Act and also proceed against any negligent third party in a common law action for negligence. Sec. 85.22, subd. 1. Slechta brought suit against the Great Northern Railway, alleging it had provided Bartlett with a boxcar having a defective handbrake, in violation of the federal Safety Appliance Act, 45 U.S.C.A. § 11, and that such violation constituted negligence which proximately caused his injuries.

Great Northern filed a third party complaint against Bartlett, Slechta's employer, asking for indemnity or in the alternative contribution from Bartlett in the event of recovery of judgment by Slechta against Great Northern. Great Northern's third party complaint charges that Bartlett was negligent in the following particulars, and that such negligence proximately caused Slechta's injuries: (a) In failing to instruct plaintiff as to the proper method of applying and using handbrakes; (b) In failing to instruct plaintiff in the proper use of the dog when applying and using handbrakes; (c) In pulling the boxcar on which plaintiff was riding at an excessive and unreasonable speed immediately before the accident; (d) In towing the boxcar with a pickup truck a greater distance than was reasonable and proper under the circumstances; (e) In ordering plaintiff to stop said boxcar too close to the end of the said spur track when third party defendant knew, or should have known, in the exercise of reasonable care, that said boxcar could not be stopped before hitting the car stops at the end of said spur track; (f) In ordering plaintiff to get onto the moving boxcar in an attempt to stop it by applying the handbrakes when third party defendant knew, or should have known in the exercise of reasonable care, that the said boxcar would be moved too fast under the circumstances then and there existing to permit plaintiff to bring it to a stop.

After Great Northern had rested its case and again at the close of all the evidence, Bartlett moved the court to dismiss the third party complaint. The parties agreed, before the case was submitted to the jury, that the question of whether Great Northern was entitled to either indemnity or contribution would be for the court to determine in the event that the jury returned a verdict in favor of Slechta against Great Northern and made affirmative answers to the following interrogatories: (A) Was Bartlett & Company, Grain, negligent in any one or more of the ways claimed by Great Northern Railway Company? (B) If the answer to Question "A" is yes, was the negligence of Bartlett & Company, Grain, a proximate cause of plaintiff's injury?

The jury returned a verdict in favor of Slechta and against Great Northern in the sum of $30,000 and answered both interrogatories affirmatively.

The questions now for determination by the court are:

(1) Is Great Northern entitled to be indemnified by Bartlett for the judgment recovered against it by Bartlett's employee, Marvin Slechta?

(2) In the alternative, is Great Northern entitled to contribution from Bartlett?

Question No. 1.

Is Great Northern Entitled to Indemnity?

Bartlett contends that indemnity cannot arise unless there is an independent contractual duty owed by it to Great Northern and that there being no pleading or evidence of such duty, indemnity must fail.

In its brief Great Northern admits there was no duty owed it by Bartlett since there was no contractual relationship between them. Great Northern contends that the existence of such a duty is not necessary in Iowa for indemnity, and cites Chicago & Northwestern Ry. Co. v. Dunn, 1882, 59 Iowa 619, 13 N.W. 722, and Rozmajzl v. Northern Greyhound Lines, 1951, 242 Iowa 1135, 49 N.W.2d 501, for the proposition that indemnity lies where the negligence of the one seeking indemnity is passive while that of the one from whom indemnity is sought is active. These cases merely hold that Iowa is one of those jurisdictions allowing the so-called "lenient exception" to the general rule which prohibits contribution or indemnity between joint tortfeasors. Under this exception, a party made to answer in damages to an injured plaintiff is entitled to be indemnified by his co-tortfeasor if his negligence was merely passive or secondary while that of his co-tortfeasor was active or primary.

In the case of Slattery v. Marra Bros., 2 Cir., 1951, 186 F.2d 134, 138, Chief Judge Learned Hand, speaking for the Court, said:

"* * * (T)hat courts have at times based indemnity merely upon a difference between the kinds of negligence of the two tortfeasors; as for instance, if that of the indemitee is only `passive,' while that of the indemnitor is `active.' Such cases may perhaps be accounted for as lenient exceptions to the doctrine that there can be no contribution between joint tortfeasors, for indemnity is only an extreme form of contribution."

The Dunn case and the Rozmajzl case are free from any considerations of what effect the Iowa Workmen's Compensation Act has on the right to recover either contribution or indemnity from an employer who has discharged his obligation to his employee under the Act. Courts construing the various state workmen's compensation statutes and federal courts construing the similar federal Longshoremen's and Harbor Workers' Compensation Act, 33 U.S.C.A. § 901 et seq., have consistently held those acts to be a bar to any action for contribution or indemnity against an employer, by a negligent third party against whom the employee has recovered judgment, where the action is based upon a mutual liability to the injured plaintiff. There can be no recovery of contribution or indemnity from the employer when the employer and third party are under a common liability to the injured employee as joint tortfeasors. Johnson v. United States, D.C.E.D.N.C.1955, 133 F.Supp. 613.

Where indemnity has been allowed against the employer there has been found an independent contractual relationship between the employer and the negligent third party which has created some duty owing the third party by the employer which the employer has breached, creating the obligation to indemnify the third party.

"But the exclusionary provisions of workmen's and longshoremen's acts have been consistently construed to preclude the right of indemnity to one negligently liable to an employee of an employer in the absence of some independent contractual relationship creating a duty on the part of the employer to indemnify." Peak Drilling Co. v. Halliburton Oil Well Cementing Co., 10 Cir., 1954, 215 F.2d 368, 371.

Great Northern insists that the decision of the Eighth Circuit Court in American District Telegraph Co. v. Kittleson, 8 Cir., 1950, 179 F.2d 946, construing the effect of the Iowa Workmen's Compensation Act on the right of a third party seeking indemnity from the employer, establishes that the Iowa act does not bar recovery of indemnity from the employer. To so construe the Kittleson case is not to recognize that there is a distinction between contractual indemnity, i. e., the indemnity arising from a contractual relationship between indemnitor and indemnitee, and the type of indemnity involved in the Dunn and Rozmajzl cases, supra, which is the type of indemnity Great Northern seeks here. This latter type of indemnity is grounded on a common liability toward the injured plaintiff and in this respect is similar to contribution. It requires no contractual relationship or duty between indemnitor and indemnitee. They are merely joint tortfeasors. Though both are at fault with respect to the injured plaintiff, if the negligence of one is passive while that of the other is active, indemity will lie against him whose negligence is active. However, there can be no common liability to the employee when the liability of the employer is governed by the terms of a workmen's compensation act and the liability of the third party is based on common law negligence....