The City of Fort Scott v. The Penn Lubric Oil Company, 27,021
| Court | United States State Supreme Court of Kansas |
| Writing for the Court | JOHNSTON, C. J.: |
| Citation | 252 P. 268,122 Kan. 369 |
| Parties | THE CITY OF FORT SCOTT, Appellee, v. THE PENN LUBRIC OIL COMPANY, Appellant |
| Decision Date | 08 January 1927 |
| Docket Number | 27,021 |
252 P. 268
122 Kan. 369
THE CITY OF FORT SCOTT, Appellee,
v.
THE PENN LUBRIC OIL COMPANY, Appellant
No. 27,021
Supreme Court of Kansas
January 8, 1927
Decided January, 1927.
Appeal from Bourbon district court; EDWARD C. GATES, judge.
Judgment affirmed.
SYLLABUS
SYLLABUS BY THE COURT.
1. INDEMNITY--Liability of Wrongdoer for Judgment Recovered Against City--Implied Contract. A city authorized an oil company to erect a filling station from which to sell oil and gasoline. It was so constructed as to cause a defective and dangerous condition of a sidewalk and in violation of a city ordinance. A pedestrian using the sidewalk was injured by the defective manner in which the filling station was constructed and maintained. He brought an action against the oil company and the city, but before the action was tried the oil company agreed with the injured party upon a compromise and a release of that company for a consideration, but stipulated that the settlement should not affect the right of the injured party to proceed further against the city. He did proceed and recovered a judgment against the city. Held, in an action by the city to secure indemnity from the oil company, that there was a breach of the implied contract between the oil company and the city that it should exercise due care to protect the public from danger and the city from loss; that the oil company was the real wrongdoer and was primarily liable for the injury, and that the city was entitled to recover from the oil company for what it was compelled to pay to the injured person, following City of Topeka v. Sash & Door Co., 97 Kan. 49, 154 P. 232.
2. SAME--Judgment by Injured Party as Conclusive of Liability. The questions involved in the action against the city, including the defense of the contributory negligence of the injured party pleaded by the city, must be deemed to have been properly determined and the judgment rendered to be conclusive evidence of the liability of the city.
3. SAME--Notice that Party Seeking Indemnity Was Being Sued. The finding of the court that the oil company had notice and knowledge of the pendency of the action against the city, is found to be sustained by the evidence.
4. SAME--Allowance of Attorney's Fee--Evidence of Value of Services. An attorney's fee was awarded to the city, and the finding of the court that counsel was legally employed and that the city received valuable benefits for his services, the reasonable value of which was fixed, has sufficient support in the evidence.
C. Jasper Bell, James B. Nourse and Henri L. Warren, all of Kansas City, Mo., for appellant.
John L. Connelly, city attorney, for the appellee; Harry Warren, of Fort Scott, of counsel.
OPINION
[122 Kan. 370] JOHNSTON, C. J.:
The city of Fort Scott recovered a judgment for $ 529.05 against the Penn Lubric Oil Company as indemnity for liabilities imposed upon the city by reason of the negligence and wrong of the oil company and also for $ 250 as an attorney's fee in litigation which resulted from the negligence and wrong of the oil company. That company appeals.
The oil company erected a curb filling station on one of the streets of Fort Scott, and it is alleged that it was installed in a defective way, leaving the sidewalk in a dangerous condition, in violation of the city ordinance. In January, 1924, Fred Bollinger received serious injuries as the result of falling over the defective intake pipe...
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City and County of San Fransisco v. Ho Sing
...& Trust Co., supra, 129 N.W. 996; City of Wabasha v. Southworth, supra, 55 N.W. 818, 819; City of Ft. Scott v. Pen Lubric Oil Co., 122 Kan. 369, 252 P. 268, 269; cf. Jessen v. Sweigert, 66 Cal. 182, 183, 4 P. We find nothing inconsistent between our decisions that one joint tort feasor may ......
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Security Insurance Co. of New Haven v. Johnson, No. 6166.
...condition. City of Topeka v. Central Sash & Door Co., 97 Kan. 49, 154 P. 232; City of Fort Scott v. Pen 276 F.2d 186 Lubric Oil Co., 122 Kan. 369, 252 P. 268; City of McPherson v. Stucker, Stucker & Strachan, 129 Kan. 262, 282 P. We perceive no real difference in the position of the railroa......
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Gammage v. Weinberg, No. 13894
...the attachment. See also Hartford Accident & Indemnity Co. v. Dahl, 202 Minn. 410, 278 N.W. 591; City of Ft. Scott v. Pen Lubric Oil Co., 122 Kan. 369, 252 P. 268; Sigmond Rothschild Co. v. Moore, Tex.Civ.App., 166 S.W.2d 744, writ ref., w. m.; 2 A.L.R. 184, Note 4; Frommeyer v. L. & R. Con......
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Prickett v. Hawkeye-Security Insurance Company, No. 6172
...for damages arising out of the accident, he would have been entitled to indemnity from Donald. City of Fort Scott v. Pen Lubric Oil Co., 122 Kan. 369, 252 P. 268; Allied Mutual Casualty Corp. v. General Motors Corp., supra; Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 49 N.W.2d 501......
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City and County of San Fransisco v. Ho Sing
...& Trust Co., supra, 129 N.W. 996; City of Wabasha v. Southworth, supra, 55 N.W. 818, 819; City of Ft. Scott v. Pen Lubric Oil Co., 122 Kan. 369, 252 P. 268, 269; cf. Jessen v. Sweigert, 66 Cal. 182, 183, 4 P. We find nothing inconsistent between our decisions that one joint tort feasor may ......
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Security Insurance Co. of New Haven v. Johnson, No. 6166.
...condition. City of Topeka v. Central Sash & Door Co., 97 Kan. 49, 154 P. 232; City of Fort Scott v. Pen 276 F.2d 186 Lubric Oil Co., 122 Kan. 369, 252 P. 268; City of McPherson v. Stucker, Stucker & Strachan, 129 Kan. 262, 282 P. We perceive no real difference in the position of the railroa......
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Gammage v. Weinberg, No. 13894
...the attachment. See also Hartford Accident & Indemnity Co. v. Dahl, 202 Minn. 410, 278 N.W. 591; City of Ft. Scott v. Pen Lubric Oil Co., 122 Kan. 369, 252 P. 268; Sigmond Rothschild Co. v. Moore, Tex.Civ.App., 166 S.W.2d 744, writ ref., w. m.; 2 A.L.R. 184, Note 4; Frommeyer v. L. & R. Con......
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Prickett v. Hawkeye-Security Insurance Company, No. 6172
...for damages arising out of the accident, he would have been entitled to indemnity from Donald. City of Fort Scott v. Pen Lubric Oil Co., 122 Kan. 369, 252 P. 268; Allied Mutual Casualty Corp. v. General Motors Corp., supra; Rozmajzl v. Northland Greyhound Lines, 242 Iowa 1135, 49 N.W.2d 501......