Whitmarsh v. Durastone Co.
| Citation | 122 F. Supp. 806 |
| Decision Date | 06 July 1954 |
| Docket Number | Civ. No. 1625. |
| Parties | WHITMARSH v. DURASTONE CO. (D'AGOSTINO et al., third-party defendant). |
| Court | U.S. District Court — District of Rhode Island |
Samuel Temkin and John B. Kelaghan, Providence, R. I., for plaintiff.
Benjamin F. Lindemuth and Daniel S. T. Hinman, Providence, R. I., for defendant.
William A. Gunning, Providence, R. I., for third-party defendant.
In this action the plaintiff seeks to recover from the defendant, Durastone Company, certain expenditures alleged to have been made by him to discharge and compromise an action at law previously instituted against him by the administrator of the estate of a workman killed during the construction of a building being erected by plaintiff for another as a general contractor.
The complaint in substance alleges that on September 12, 1950, plaintiff entered into a contract with one Barber to erect a single story garage in the Town of East Providence in the State of Rhode Island; that on October 3, 1950, the defendant agreed with the plaintiff for a valuable consideration to furnish and erect the roof of said building; that thereafter the defendant employed one Domenic D'Agostino d/b/a Providence Crane Service to set the planks in the roof as required under its contract with the plaintiff; that on November 28, 1950, one Michael Mello, an employee of said Providence Crane Service, was killed while engaged in setting the planks in the roof, as instructed by the defendant, when a steel beam upon which the planks were to rest was overloaded; that the immediate cause of the death of said Mello was the negligence of the defendant; that thereafter the administrator of the estate of said decedent instituted an action at law against the plaintiff in the Superior Court of the State of Rhode Island in and for the County of Providence in the amount of $50,000 for damages caused by his death; that the plaintiff notified the defendant of the pendency of this action and demanded that it take over the defense thereof; that defendant failed to take over the defense of said action and that after three days of trial the plaintiff submitted to the entry of a decision in the sum of $3,000 in favor of the plaintiff, and thereafter paid said amount in satisfaction of the judgment entered on said decision.
He further alleges that any liability on his part for the death of the decedent arose out of the contractual relationship between the plaintiff and the defendant, and seeks the recovery of said sum of money plus the amount claimed to have been expended by him for attorney's fees, court costs and witness fees in connection with said action at law.
The defendant, Durastone Company, in its answer admits the jurisdiction of this Court, denies that the expenditures claimed by the plaintiff were reasonable and prudent, that the immediate cause of the death of the decedent was its negligence and that any liability on the part of the plaintiff for the death of the decedent arose out of his contract with the defendant. The remaining allegations of the complaint are neither admitted nor denied by the defendant which leaves the plaintiff to his proof thereof.
Subsequent to filing its answer the defendant moved under Rule 14(a), Fed. Rules Civ.Proc. 28 U.S.C.A., for leave as a third-party plaintiff to make the said Domenic D'Agostino d/b/a Providence Crane Service a third-party defendant in this action.
This motion was granted. Thereafter defendant as third-party plaintiff filed its complaint and process was issued and served upon said third-party defendant.
In its complaint third-party plaintiff alleges in substance that plaintiff has instituted his action against it, and annexes to its complaint a copy of plaintiff's complaint; that it had engaged third-party defendant for a valuable consideration to pick up, move and lay certain concrete slabs in their proper places on the one story building described in the original complaint filed in this action; that one Michael Mello was killed during the performance of said work; that it had notified third-party defendant to come in and defend this civil action; that third-party defendant has refused to do so; that it has denied any liability in its answer as defendant, and alleged that such liability, if any exists, rests with third-party defendant because it, the third-party plaintiff, had no right to exercise any control over the methods used to raise and set out the slabs, did not exercise any such control, and did not furnish any of its employees or any tools or equipment in connection with said work. The third-party complaint demands judgment against third-party defendant for all sums that may be adjudged against third-party plaintiff in favor of the plaintiff.
This matter is now before the Court on (1) the motion of the defendant to dismiss the complaint, and on (2) the motion of the third-party defendant to dismiss the third-party complaint.
The motion of the defendant to dismiss the complaint is based upon the grounds that (a) the action was not commenced within two years after the cause of action accrued, (b) that the liability of plaintiff in the action for the expenditures for which he seeks indemnity was not adjudicated, (c) that the complaint fails to state a claim against it upon which relief can be granted, and (d) that the Court has no jurisdiction over the claims set forth in said complaint.
The motion of the third-party defendant to dismiss the third-party complaint is based upon the grounds that it fails to state a claim against third-party defendant upon which relief can be granted, and that this Court has no jurisdiction over the claim set forth in that complaint.
Filed in support of this motion is an affidavit to the effect that the decedent and third-party defendant prior to his death had elected to become and had become subject to the Workmen's Compensation Act of Rhode Island, Gen.Laws 1938, c. 300; that after his death a final settlement was made between third-party defendant and the sole dependent of the deceased, and all benefits due said dependent under said Act were paid to her; that the action at law referred to in the complaint in this action was brought by the administrator of the estate of said decedent under an agreement with the third-party defendant to indemnify him or his insurer for the amount of compensation paid to the dependent of the deceased and that the rights of said third-party defendant or his insurer to any indemnity have been fully satisfied; that the payment by said plaintiff was a voluntary payment and not a payment made under compulsion and that the third-party complaint shows no primary responsibility on the part of the third-party defendant.
The Court will first consider the motion of the defendant to dismiss the complaint against it. It is generally held that a complaint should not be dismissed for failure to state a claim unless it appears to a certainty that no state of facts which could be proved in support of its allegations would entitle the plaintiff to relief. For purposes of a motion to dismiss, a complaint should be viewed in the light most favorable to the plaintiff. Atlantic Coast Line R. Co. v. Mims, 5 Cir., 1952, 199 F.2d 582; John Walker & Sons v. Tampa Cigar Co., Inc., 5 Cir., 1952, 197 F.2d 72; Callaway v. Hamilton Nat. Bank of Washington, 90 U.S.App.D.C. 228, 195 F.2d 556.
In the present case it cannot be said from an examination of the plaintiff's complaint that it appears with certainty that the plaintiff is not entitled to relief under any state of facts that he may prove in support of his complaint. The complaint alleges that the defendant for a consideration entered into a contract with plaintiff to do certain work for him. Clearly it was under a duty to the plaintiff to do that work in a careful and prudent manner. It is not for the Court to speculate as to the nature of the proof which the plaintiff may...
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