State Highway Commission v. Bourne

Decision Date16 March 1967
Docket NumberNo. 3534,3534
Citation425 P.2d 59
PartiesSTATE HIGHWAY COMMISSION of Wyoming, Appellant (Defendant below), v. C. D. BOURNE, d/b/a Sheet Metal Products Company, Appellee (Plaintiff below).
CourtWyoming Supreme Court

John F. Raper, Atty. Gen., Glenn A. Williams, Asst. Deputy Atty. Gen., J. Richard Plumb, Asst. Atty. Gen., Cheyenne, for appellant.

Richard F. Pickett of Loomis, Lazear, Wilson & Pickett, Cheyenne, for appellee.

Before PARKER, C. J., and HARNSBERGER, GRAY and McINTYRE, JJ.

Mr. Justice GRAY delivered the opinion of the court.

Plaintiff, C. D. Bourne d/b/a Sheet Metal Products Company, brought action against the defendant, State Highway Commission of Wyoming, to recover for material and services furnished in the repair of a roof on the office building owned and occupied by the defendant. The defendant, on the day preceding the filing of its answer, filed a third-party complaint against Spiegelberg Lumber and Building Company, a contractor; against Sam C. Hutchings, an architect; and against Ruberoid Company, a foreign corporation, a furnisher of roofing material. 1 In brief, the litigation grows out of the installation of a defective roof in the construction of the commission's new building and each of the third-party defendants, as well as Bourne, were in some fashion involved in that construction. The commission denied that it was indebted to Bourne but claimed that if it was, all of the third-party defendants are 'or may be liable to him (it) for all or part of the plaintiff's (Bourne's) claim against him (it).' Rule 14(a), W.R.C.P. Approximately two and one-half years after the third-party complaints were filed and served, Bourne filed a motion to vacate the order of the court granting leave to the commission to serve summons and complaints on the third party defendants 2 and to dismiss the complaints on the ground that said complaints failed to state facts upon which relief could be granted. The trial court thereupon granted Bourne's motion, proceeded shortly thereafter with the trial of the action on Bourne's initial complaint and the commission's amended answer thereto, and entered judgment for Bourne against the commission in the sum of $15,545.82 plus interest and costs. From that judgment the commission appeals.

Several claimed errors of the trial court have been advanced by the commission, but its principal argument is directed at the order dismissing the third-party complaints. In essence the commission contends that the action of the trial court constituted an abuse of discretion under the circumstances then existing. After careful analysis of the record we have concluded that the contention is sound and that such error was prejudicial. Inasmuch as the case will be returned for further proceedings below, we deem it inadvisable to consider the other claimed errors and our discussion here will be understood as relating to the procedural questions.

In passing upon the merits of Bourne's motion to dismiss, we have been somewhat bothered by the timeliness of the filing of the motion; the utilization of such a motion on the state of the pleadings then existing 3; and the assertion that the third-party complaints failed to state 'any facts upon which third-party defendants are or may be liable to defendant for all or part of plaintiff's claim against defendant.' Nevertheless, the commission in its brief and in its argument has not raised these points and for that reason we shall proceed to consider the motion as simply a motion to dismiss the third-party complaints for failure to state a claim upon which relief could be granted, which apparently was the view taken by the trial court.

The basis of Bourne's motion was in substance that his claim was based on a separate and distinct transaction between himself and the commission; that no other person has or had any connection whatsoever with the subject matter of his claim or any interest in the result; that the third-party defendants are strangers to the transaction and have no privity with him or the commission; and that such defendants could offer nothing by way of defense or evidence which would or could affect the outcome of his claim. In the foregoing it will be noticed that the motion is not directed at the infraction of the procedural rule above mentioned and neither is it advanced that the commission as a matter of substantive law was not entitled to indemnity from one or more of the third-party defendants on the theory advanced by its complaints. In view of the fact that the trial court did not state the basis for granting the motion, we assume it was based upon one or more of the grounds asserted by Bourne.

While we can agree, as Bourne contends, that the trial court is vested with a broad discretion in passing upon such a motion, Noland Company v. Graver Tank & Manufacturing Company, 4 Cir., 301 F.2d 43, 50, it is also well recognized that if it acts under an erroneous theory or otherwise abuses its discretion the case will be returned for further consideration. Southern Railway Company v. Fox, 5 Cir., 339 F.2d 560, 563; Duke v. Reconstruction Finance Corp., 4 Cir., 209 F.2d 204, 208 certiorari denied 347 U.S. 966, 74 S.Ct. 777, 98 L.Ed. 1108; Masters v. Hart, 189 Va. 969, 55 S.E.2d 205, 209. Also, for purposes of the motion, the well-pleaded facts in the third-party complaints must be taken as true, Keller Crescent Printing and Engraving Company v. Rosen, D.C.Pa., 135 F.Supp. 22, 23; State Public School Building Authority v. Tectum Corporation, D.C.Pa., 221 F.Supp. 308, 312; Lane v. Celanese Corp. of America, D.C.N.Y., 94 F.Supp. 528, 530; Behar v. Savard, D.C.N.Y., 21 F.R.D. 367, 370; and while it is essential that the third-party plaintiff must make some showing that entitles him to recover over against the third-party defendants, it is not required that he do so to an absolute certainty. Choate v. United States, D.C.Okla., 233 F.Supp. 463, 464; State Public School Building Authority v. Tectum Corporation, supra, 221 F.Supp. at 311; Concordia College Corp. v. Great American Ins. Co., D.C.Minn., 14 F.R.D. 403, 406; 3 Moore's Federal Practice, § 14.10, pp. 554, 555 (2d. Ed.). It has also been said by way of general authority:

'A motion to dismiss a complaint for failure to state a claim on which relief can be granted admits the facts alleged in the complaint but challenges the plaintiff's right to relief.

'Motions to dismiss are sparingly granted and only if the averments in the pleading attacked disclose with certainty the impossibility of proving a claim upon which relief can be granted. If doubts may be dispelled by amendment, the court should permit the pleading to be amended. The allegations of the complaint must be viewed in a light most favorable to plaintiff, admitting and accepting as true all facts well pleaded.' 1A Barron and Holtzoff, Federal Practice and Procedure, § 350, pp. 321-323 (1960).

Attention is also called to what was recently said in our own case of In re Big Bend Drainage District, Wyo., 418 P.2d 784, 789:

'* * * (I)nasmuch as the counterclaim was dismissed for failure to state a claim on which relief could be granted, leave should have been given to amend unless the court determined that the allegation of other facts consistent with the challenged pleading could not possibly cure the deficiency. Bonanno v. Thomas, 9 Cir., 309 F.2d 320, 322; and see Sidebotham v. Robison, 9 Cir., 216 F.2d 816, 826. The record does not reflect that the trial court made such a determination. As it was well said by Judge Hamley in Bonanno v. Thomas, 9 Cir., 309 F.2d 320, 322, 'Where a complaint is dismissed on the ground that it fails to state a claim, the order should also inform the plaintiff of the reason for dismissal so that he can make an intelligent choice as to amending.' * * *'

In testing the propriety of dismissing the commission's third-party claims under the foregoing legal principles, some analysis of the complaints is necessary. In the complaint against Spiegelberg the commission alleged in substance that it had entered into a contract with Spiegelberg as the prime contractor in August 1957 for construction of the building in question; that the commission agreed to pay and did pay the approximate sum of $1,800,000 for the completed structure; that Spiegelberg subcontracted with Bourne to lay the specified roofing on said building; that in May 1960 the roof began to leak and certain minor repairs were made; that such repairs did not correct the roof leakage and in the spring of 1962 major repairs were made by Bourne; that the commission relied upon the integrity and ability of Bourne and Spiegelberg to build and construct the roof in a workmanlike manner and in accordance with the specifications of the contract; that due to the carelessness and inefficiency of both, the roof was not satisfactorily constructed, all to the damage of the commission. The complaint against Hutchings alleged that an agreement had been entered into between Hutchings and the commission whereby Hutchings was to design and prepare specifications for the construction of the building and to oversee, supervise and accept or reject any and all construction done on said building; that the specifications prescribed that an asphaltic preparation manufactured by Ruberiod be used in the roofing; that the roof, along with the rest of the building, was completed in August 1958 and accepted by Hutchings; that the roof was not in fact constructed properly or adequately and that Hutchings wrongfully accepted said roof; that the commission relied upon the integrity and ability of Hutchings to perform, but due to his carelessness and inefficiency in accepting the roof the commission was damaged thereby. The complaint against Ruberoid alleged that Ruberoid had warranted its products for a period of 20 years and had bonded said roof; that the materials furnished by Ruberoid were in fact substandard in quality and as a result the...

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