Travelers Indemnity Company v. Evans Pipe Company
| Decision Date | 19 October 1970 |
| Docket Number | 20163.,No. 20162,20162 |
| Citation | 432 F.2d 211 |
| Parties | TRAVELERS INDEMNITY COMPANY, Plaintiff-Appellee and Cross-Appellant, v. EVANS PIPE COMPANY and Evanite Plastic Company, Defendants-Appellants and Cross-Appellees. |
| Court | U.S. Court of Appeals — Sixth Circuit |
John E. Martindale, Cleveland, Ohio, Arter & Hadden, Cleveland, Ohio, on the brief, for plaintiff-appellee and cross-appellant.
William F. Snyder, Cleveland, Ohio, Aberdeen P. Hutchison, Marshman, Snyder & Seeley, Cleveland, Ohio, on the brief, for defendants-appellants and cross-appellees.
Before WEICK, CELEBREZZE and MILLER, Circuit Judges.
Travelers Indemnity Company (Travelers) was surety on the performance and payment bond of a golf course builder named Mitchell on his contract to construct a golf course for Old Westbury Golf and Country Club. Mitchell purchased plastic pipe for the irrigation system of the golf course, from Evans, which pipe after its installation, proved defective and required replacement.
The Country Club sued Travelers and Mitchell in a New York Court on the contract and surety bond, to recover damages it sustained. Travelers filed a third-party complaint against Evans, a resident of Ohio, and attempted to obtain service of process under New York's "long-arm statute". Evans appeared specially and moved to quash the service of summons on the ground that Mitchell's contract to purchase the pipe from Evans was completed in Ohio and the "long-arm statute" was not sufficiently broad to authorize service of process. The Court granted Evans' motion and quashed the service of summons. Travelers then endeavored to "vouch in" Evans by giving it written notice of the pending case and demanding that it defend the action or be bound by any judgment entered therein. Evans refused to defend. The Country Club recovered judgment against Travelers in the New York Court which found that the plastic pipe was defective.1 Travelers paid the judgment and sued Evans in the District Court to obtain reimbursement for the payment which it made, plus attorneys' fees. The District Court rendered judgment against Evans for the full amount of the New York judgment plus attorneys' fees. It denied Travelers' additional claim against Evans for the purchase price of pipe Travelers purchased from Evans in order to complete Mitchell's contract with the Country Club. Both Evans and Travelers appealed. We affirm.
Travelers was subrogated not only to the rights of its principal (Mitchell) but also to the rights of its obligee (Country Club). Maryland Casualty Co. v. King, 381 P.2d 153 (Okl. 1963); Maryland Casualty Co. v. Gough, 146 Ohio St. 305, 65 N.E.2d 858 (1946). It could assert the rights of both. Evans, if properly "vouched in", was bound by the determinations of fact and law in the New York case. Hessler v. Hillwood Mfg. Co., 302 F.2d 61 (6th Cir. 1962).
Evans contends that the warranties in its sale to Mitchell are different from those involved in Mitchell's contract with the...
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