Tevington v. International Milling Co.

• Decision Date: 16 March 1945
• Docket Number: Civ. 1889.
• Citation: 71 F. Supp. 621
• Parties: TEVINGTON v. INTERNATIONAL MILLING CO. (SCHMAHL SHEET METAL WORKS, Inc., third-party defendant).
• Court: U.S. District Court — Western District of New York

71 F. Supp. 621

TEVINGTON v. INTERNATIONAL MILLING CO. (SCHMAHL SHEET METAL WORKS, Inc., third-party defendant).

Civ. 1889.

District Court, W. D. New York.

March 16, 1945.

William J. Brock, of Buffalo, N. Y., for plaintiff.

Adams, Smith, Brown & Starrett, of Buffalo, N. Y. (Edmund S. Brown, of Buffalo, N.Y., of counsel), for third-party plaintiff.

Selby G. Smith, of Buffalo, N. Y., for third-party defendant.

KNIGHT, District Judge.

The plaintiff was injured while employed as a grain shoveler on a boat being unloaded at the International Milling Company's (hereinafter referred to as the Milling Company) elevator at Buffalo, New York. The complaint alleges negligence in that a hook in use broke causing plaintiff to be struck and injured by a shovel.

The Milling Company answered with a denial of its negligence, and alleged plaintiff's negligence and certain other defenses. It then secured an order from this court under Federal Rules of Civil Procedure, rule 14(a), 28 U.S.C.A. following section 723c, bringing in the Schmahl Sheet Metal Works, Inc. (hereinafter referred to as Schmahl) as third party defendant, upon the allegation that, if the Milling Company was liable to plaintiff, Schmahl, who had made the hook that broke, was in turn liable to the Milling Company for the damages sustained because of Schmahl's negligent construction of the broken hook.

After service of the complaint, Schmahl appeared specially and now moves to vacate the order, set aside the service of the third party complaint and to strike out the Milling Company's claim as against them upon the ground that the order bringing in Schmahl as third party defendant was improperly made.

Schmahl relies mainly on Brown v. Cranston, 132 F.2d 631, 148 A.L.R. 1178 (Id., D.C., 2 F.R.D. 270; certiorari denied Cranston v. Thompson, 319 U.S. 741, 63 S. Ct. 1028, 87 L.Ed. 1698). That case differs in that the third-party defendant there, among other things, sought contribution. Here the Milling Company alleges total liability in Schmahl and the right to recover all damages imposed upon it. Vide: Carbola Chemical Co., Inc., v. Trundle Engineering Co., D.C., 3 F.R.D. 500.

Further, it is not believed that the Milling Company and Schmahl are joint tort feasors. Schmahl occupies the position of an indemnitor to the Milling Company. Burris v. American Chicle Co., D.C., 120 F. 2d 218. His liability to the Milling Company is based on the breach of an implied warranty. Crim v. Lumbermen's Mutual Cas. Co., D.C., 26 F.Supp. 715; Saunders v. Goldstein (Southern Dairies, Inc.), D. C., 30 F.Supp. 150; Jeub v. B/G Foods, Inc., D.C., 2 F.R.D. 238; Carbola v. Trundle, supra; and cases cited in Moore's Federal Practice, Vol. 1, sec. 14; Lensch v. Boushell Carrier Co., Inc., D.C., 1 F.R.D. 200; Kravas v. Great A. & P. Tea Co., D. C., 28 F.Supp. 66.

It is true, as asserted by the third party defendant, that numerous cases cited by the defendant and third party plaintiff are such as show a legal relationship between the parties which under the law casts liability upon the one sued for the negligence of another. It is believed that there is a legal relationship between the two in the instant case, though it may arise from different type of relationship. Here there is a relationship or primary and secondary liability.

The rule of law in New York is...