Viens v. ANTHONY COMPANY, Civ. A. No. 4832.

• Decision Date: 18 March 1968
• Docket Number: Civ. A. No. 4832.
• Citation: 282 F. Supp. 983
• Court: U.S. District Court — District of Vermont
• Parties: Barbara D. VIENS, Administratrix of the Estate of Emile G. Viens v. ANTHONY COMPANY, Defendant and Third-Party Plaintiff, v. IROQUOIS MANUFACTURING CO., Inc., New England Telephone and Telegraph Company, Raymond J. Quesnel, Richard A. Monroe and Carleton J. Hanley, Third-Party Defendants.

282 F. Supp. 983

Barbara D. VIENS, Administratrix of the Estate of Emile G. Viens v. ANTHONY COMPANY, Defendant and Third-Party Plaintiff, v. IROQUOIS MANUFACTURING CO., Inc., New England Telephone and Telegraph Company, Raymond J. Quesnel, Richard A. Monroe and Carleton J. Hanley, Third-Party Defendants.

Civ. A. No. 4832.

United States District Court D. Vermont.

March 18, 1968.

Stephen B. Martin, Davis, Martin & Free, Barre, Vt., for plaintiff.

Albert W. Coffrin, Coffrin & Pierson, Burlington, Vt., for defendant Anthony Co.

William H. Quinn, Black, Wilson & Hoff, Burlington, Vt., for third-party defendant Iroquois Mfg. Co., Inc.

John D. Carbine, Ryan, Smith & Carbine, Rutland, Vt., for third-party defendants New England Telephone and Telegraph Co., Raymond J. Quesnel, Richard A. Monroe and Carleton J. Hanley.

OPINION

LEDDY, District Judge.

Barbara D. Viens, administratrix of the Estate of Emile C. Viens has brought survival and wrongful death actions against Anthony Company, manufacturer of hydraulic lift gates, under 14 V.S.A. §§ 1453, 1491 and 1492. She seeks recovery for the pain and suffering of the decedent and the pecuniary loss suffered by his next of kin. Count 1 of her complaint alleges that the decedent's injury and death were the result of the defendant manufacturer's "negligence in the design and method of manufacture" of the hydraulic lift gate in question. Count 2 in the alternative bases the liability of the defendant upon a breach of implied warranty that the lift gate was reasonably fit for the purposes for which it was intended to be used.

Pursuant to Rule 14 of the Federal Rules of Civil Procedure,¹ the District Court granted defendant Anthony's motion to file third-party complaints against Iroquois Manufacturing Company, New England Telephone and Telegraph Company, Raymond J. Quesnel, Richard A. Monroe and Carleton Hanley. Each of these complaints alleges that if the defendant, Anthony Company, is found to be liable to the plaintiff that it is entitled to indemnification from each of the third-party defendants on the grounds that any negligence on the part of Anthony Company was merely "passive or secondary" in nature and, since the negligence on the part of each of the third-party defendants was "active or primary" in nature, that these circumstances raise an obligation on the part of the third-party defendants to indemnify Anthony Company for any loss which it might incur. Each of these third-party defendants has moved that the Court dismiss the third-party complaints on the ground that they fail to state a claim upon which relief may be granted.

Rule 14 of the Federal Rules of Civil Procedure provides that a defendant may join as a third-party defendant one "who is or may be liable to him for all or part of the plaintiff's claim against him." As a Federal Court sitting in Vermont, we must apply the substantive law of this State in determining the rights and liabilities between these parties. 3 Moore's Federal Practice § 14.03 (3) (1967) Therefore, I will first consider upon what grounds the law of Vermont requires one wrongdoer to answer in whole or in part for the liability of another wrongdoer.

In the case of Spaulding v. Oakes, 42 Vt. 343, 347 (1869), the Vermont Supreme Court stated,

"the general proposition, that there can be no contribution nor indemnity between wrongdoers, is perfectly well settled by a long and uniform course of decisions * * *."

The Court further stated in Atkins v. Johnson, 43 Vt. 78, 80 (1870), that

"the general principle, that there can be no contribution nor indemnity as between joint wrongdoers, is too well settled as to require either argument or authority."

Although the Vermont Supreme Court has never made an exception to the rule that there may be no contribution as between wrongdoers, the Court, however, in the case of Spaulding v. Oakes, supra, established two exceptions to the rule that there may not be indemnity as between wrongdoers.² The first exception is where there exists "an express understanding to indemnify against the consequences of such act or omission to act."³

The second is when the

"circumstances attending the transaction, as between the parties, are such that the law will therefore imply the undertaking or raise an obligation on the part of the one to indemnify the other."⁴

Since there is no allegation in the pleadings that any of the third-party defendants had expressly undertaken to indemnify Anthony Company, the first exception need not here be considered. The real question in issue is whether the defendant's third-party complaint has stated a claim within the second exception. This exception,⁵ an implied undertaking to indemnify, is summarized in the frequently quoted language of Chief Justice Stern of the Pennsylvania Supreme Court in Builder's Supply Co. v. McCabe, 366 Pa. 322, 325-328, 77 A.2d 368, 370, 24 A.L.R.2d 319 (1951),

"The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his own part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on the difference in degrees of negligence or on any doctrine of comparative negligence * * *. It depends on a difference in the character or kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the person * * * without multiplying instances, it is clear that the right of a person vicariously or secondarily liable for a tort to recover from one primarily liable has been universally recognized. But the important point to be noted in all of the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relationship between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible."

In the case of the Town of Roxbury v. Central Vermont Railway, 60 Vt. 121, 14 A. 92 (1887), a railroad had the duty after construction of a crossing to restore a highway to its previous condition. It did not perform this duty and as a result a traveler was injured. The town, however, was required by statute to maintain the way, a non-delegable duty which it did not perform. The Vermont Supreme Court stated that as between these wrongdoers, the railroad had the primary duty to maintain the way. Thus, the Court required the railroad to indemnify the town for the traveler's judgment against it.

This case is an example of where the Vermont Supreme Court used the distinction between primary and secondary liability to raise an obligation on the part of the party actively at fault to indemnify the other.⁶ Although the Railroad charter made the duty to restore the way contractual (see Otis Elevator Co. v. Maryland Casualty Co., 95 Colo. 99, 33 P.2d 974 (1933); Great American Insurance Co. v. Evans, ...