Sweet v. Atkinson

• Citation: 182 N.W. 793,191 Iowa 645
• Decision Date: 10 May 1921
• Docket Number: 33543
• Parties: MRS. SIDNEY S. SWEET, Administratrix, Appellant, v. J. F. ATKINSON, Appellee
• Court: United States State Supreme Court of Iowa

182 N.W. 793

191 Iowa 645

MRS. SIDNEY S. SWEET, Administratrix, Appellant, v. J. F. ATKINSON, Appellee

No. 33543

Supreme Court of Iowa, Des Moines

May 10, 1921

Appeal from Carroll District Court.--E. G. ALBERT, Judge.

ACTION in the name of the administratrix of the estate of Sidney S Sweet, deceased, for reimbursement for the amount which plaintiff alleges she was compelled to pay as damages to the administratrix of the estate of Walter H. McNulty, who was fatally injured by a brick cornice, falling from a two-story brick building owned by decedent, fronting on a business street in Belle Plaine, Iowa; and also for costs, interest and attorneys' fees paid by her in defending against said claim for damages. The material facts are stated in the opinion. No evidence was introduced by the defendant. There was a directed verdict for defendant, and plaintiff appeals.

Affirmed.

Dawley & Jordan, Lee & Robb, and E. N. Farber, for appellant.

C. H E. Boardman and L. H. Salinger, for appellee.

STEVENS, J. EVANS, C. J., ARTHUR and FAVILLE, JJ., concur.

OPINION

STEVENS, J.

Plaintiff 's petition is in two counts. In Count 1 thereof she alleges that Sidney S. Sweet, decedent, on April 18, 1902, entered into a written contract with the defendant, J. F. Atkinson, by the terms of which the defendant agreed to furnish all of the material and labor therefor, and to construct a two-story brick building in the city of Belle Plaine for decedent, according to certain plans prepared by one John H. Prescott, architect, which, as originally drawn, provided for an ornamental, terra cotta front, but which plans, at the suggestion of the defendant, were changed so as to show a brick front with an overhanging brick cornice; that the defendant constructed said cornice in such a careless, negligent, and unworkmanlike manner as that, on or about the 26th of February, 1909, it fell, striking Walter H. McNulty, who was standing in front of the building, fatally injuring him; that thereupon, a claim for damages was filed by the administratrix of his estate, against the estate of plaintiff's decedent, and, upon a trial to a jury, it was established in the sum of $ 8,000, which plaintiff paid, together with interest, costs, and attorney's fees. Plaintiff demands judgment herein for $ 9,891.93, the amount of said judgment with interest, $ 1,558.50 attorney fees, $ 208.09 incidental expenses of the trial, $ 442.73 costs, and $ 500 for repairing the cornice.

The two counts of plaintiff's petition are identical, except that it is alleged in Count 1 that due notice was given to the defendant of the filing of the claim for damages against the plaintiff, requesting him to make defense thereto. The defendant, for answer, admitted the execution of the contract and the erection of the building, and averred that same was constructed in all respects according to the contract and the plans furnished him, and that, after the completion thereof, it was inspected and accepted by the owner; and denied all of the remaining allegations of the petition.

It is the contention of counsel for appellant that, but for certain erroneous rulings of the court, excluding material evidence offered by plaintiff, her cause of action and right of recovery against the defendant for the full amount of the several items above enumerated would have been conclusively proven. The particular evidence excluded by the court upon the objection of defendant's counsel, of which plaintiff complains, was the architect's complete original plans for the building; a certified copy of the finding and judgment in probate of the claim of the administratrix of the estate of Walter H. McNulty and the payment and satisfaction thereof, together with the costs taxed therein; a transcript of all the evidence introduced by both parties upon the trial of said claim; and also the testimony of C. A. Sweet as to the amount paid by plaintiff upon said judgment, costs, incidental expenses, and attorney's fees. A copy of the claim filed by the administratrix of the McNulty estate and of the original instructions to the jury in the trial of said claim was offered by plaintiff and admitted in evidence. An inspection of the claim and of the court's charge discloses that the claimant charged negligence both in the original construction of the cornice and also in the maintenance thereof by the owner, and that both issues were submitted to the jury, which returned its verdict for the plaintiff, without special findings.

The law is well settled that, where one who is secondarily liable is compelled to respond in damages to the injured party, he may recover the amount paid from the person primarily liable. Pfarr v. Standard Oil Co., 165 Iowa 657, 146 N.W. 851; Pfarr v. Standard Oil Co., 176 Iowa 577, 157 N.W. 132; City of Des Moines v. Des Moines Water Co., 188 Iowa 24, 175 N.W. 821; Westfield G. & M. Co. v. Noblesville & E. G. R. Co., 13 Ind.App. 481 (41 N.E. 955); City of Seattle v. Regan & Co., 52 Wash. 262 (100 P. 731); Costa v. Yochim, 104 La. 170 (28 So. 992); Baltimore & O. R. Co. v. County Commissioners, 113 Md. 404 (77 A. 930); Hobbs v. Hurley, 117 Me. 449 (104 A. 815); City of Louisville v. Louisville R. Co., 156 Ky. 141 (160 S.W. 771); Eaton & Prince Co. v. Mississippi Val. Tr. Co., 123 Mo.App. 117 (100 S.W. 551); Frankenthal v. Lingo, 16 Tex. Civ. App. 229 (40 S.W. 815); Robbins v. Chicago, 4 Wall. 657 (18 L.Ed. 427); Boston W. H. & R. Co. v. Kendall, 178 Mass. 232 (59 N.E. 657); Oceanic S. Nav. Co. v. Compania Trans. Esp., 134 N.Y. 461 (31 N.E. 987); Astoria v. Astoria & C. R. R. Co., 67 Ore. 538 (136 P. 645).

This rule, however, rests entirely upon the proposition that, as between two persons, both of whom are liable to the injured party for damages, there is a primary and secondary liability, they not being joint tort-feasors and in pari delicto as to the wrong causing the injury. It is also well settled that, where an action for damages is brought against a party secondarily liable, and he gives notice of the pendency thereof to the person primarily liable for the damages claimed, informing him that he will look to him for contribution or reimbursement, and requesting that he make defense, a judgment rendered against the defendant is conclusive upon the party having the primary liability. Pfarr v. Standard Oil Co., 165 Iowa 657 146 N.W. 851; Pfarr v. Standard Oil Co., 176 Iowa 577, 157 N.W. 132; Boston & M. R. Co. v. Brackett, 71 N.H. 494 (53 A. 304); Baltimore & O. R. Co. v. County Com., 111 Md. 176 (73 A. 656); McArthor v. Ogletree, 4 Ga.App. 429 (61 S.E. 859); City of Bloomington v....