*1 Russell, case, to such an Illinois action, adopted unfa- tion most court the the Co., Shell of Casualty con- Continental possible of the Use vorable construction based, Ill.App. 168, Oil 89 N.E.2d Company, 339 complaint was tract on which the con court such where held that render the fact situation to assumed a indemnifying against tract “all accidents such applicable. think construction We pur- ‘resulting arising from in connection not warranted construction was ” operations’ with in dis- of contractor’s poses disposing of of motion the Corp., against indemnity cluded caused miss. Hotel accidents Carroll v. Morrison by the dis Cir., Bldg. negligence, indemnitee’s own 404; Publicity Real- 149 F.2d Westinghouse case relied 583, tinguishing Corp. Cir., F.2d the ty Hannegan, upon memo by in its the District Court case: As latter 586. the court said in the case, randum. Russell do “The of Procedure Federal Rules Civil * * * found “force in contention disposition doubtful not sanction the negligence party ‘that of either does not to dis- or law motions issues fact case, injury into enter because insufficiency pleadings.” miss for * * * employee resulted settlement We not convinced that the arose in with con- connection one of the the circumstances brief- claim under against operations tractor’s agreed complaint ly stated was such an ” hold defendant harmless.’ conclusively negligence admission of as to plaintiff’s negligence alone establish that appears it Thus that substantial injury. caused Nor convinced are we presented complaint, issues by wholly that that determinative fact issue day its entitled to complaint. presented by issues in court hearing and determination question think of law We a serious was of those issues. presented scope indemnity as to Judgment reversed, and cause remanded agreement certainly to with- “enough — proceedings. for further motion, only stand a mere formal directed complaint.” See Dio- to the face Cir.,
guardi Durning, 2 F.2d contended, the District 775. Defendant adopted theory, apparently its thal
Court parties liability its intended limit injuries by defects and hazards caused hopper think inherent itself. We HANOCK v. et al. ECK by construction this is no means No. 9866. given par- that can language ties. Appeals, United States Court of Seventh Circuit. indem It is true that contracts July 20, 1950. parties caused nifying losses subject negligence are generally their own Rehearing Sept. 11,1950. Denied construction, as stated to strict Court, generally, “where District negligence
parties expressly to fail to refer such
in their contract failure evidences provide
parties’ for indem intention negligent
nity for the indemnitee’s acts.” Annotation, page A.L.R. at 30. there, However, page Annotator qualification attention to this calls rule in number of construction
strict agree language of
cases where the broad as indicate the inten
ment was so parties that should include
tion of plaintiff calls our
negligence. And atten- *2 111., appel- Chicago, Mulks,
Harold O. lant. ap- 111.,for Solomon, Chicago, E. Julius
pellee. FINNEGAN, KERNER, Before SWAIM, Judges. Circuit
KERNER, Judge. Circuit plain- judgment for appeal is from a This Emergency Price tiff in a suit ex- as amended and of 1942 Control Act seq., 901 et tended, U.S.C.A.Appendix, § recover over- two defendants alleged to have and a bonus ceiling rentals cer- paid by plaintiff for the rental of been housing accommodations. tain dispute over the basic There is no serious plaintiff paid the sum of $266.67 facts estab- maximum rental over and above and that apartment involved lished for rental of bonus for the as a questions The raised sus- sufficiency of the evidence to as to Eck; judgment against Mrs. le- tain the gal effect as to Mrs. Gaebel Eck, only against Mrs. default peti- on the latter’s subsequently vacated ; plaintiff’s cause asserted whether tion and entrap- grounded on in fact action was ment. Eck and Flora complaint named Julia alleged defendants and as property legal to the title the ” “holds * * * either the Gaebel “is and that defendant, Eck, or is agent for the Julia property owner beneficial ** forth that defend- set It further 10, 1946, rented ants, about on or plaintiff at rental of an period from for a lease
a month under
to December
January
renting,
re-
defendants
condition
as a
pay to them a bonus
quired
rent established
$325,
and that
apartment was $40.
on
defendants and
Following
both
service
neither,
on
matter came
appearance
February
hearing,
on
parte
ex
After
judgment.
entered
the court
personal serv-
had been
reciting that there
were in de-
but both
both defendants
ice
appearance,
had filed
neither
fault
open Eck,
on the
the cause
reopening
taken
evidence had
petition
Eck held the
did not revive the cause
latter’s
court,
that defendant
it found
rent-
as to Mrs.
Gaebel;
involved and
is erroneous
property
legal title to the
lease
no evi-
Eck for the reason that there is
therein to
aned
*3
maximum es-
of the
dence whatever that she ever demanded
excess
for a rental in
Emergency Price Con-
payments alleged to
received
of the
the
tablished under
overcharges
provisions
rendered
and therefore
of
constitute
trol Act
Act;
there
against her.
the Price
and that
is
judgment
of
Control
finding
support
to
no evidence
the court’s
granted
the court
September
On
her
conspiracy
of connivance
between
and
sup-
by Eck with a
July
filed
26
motion
They further contend
and Mrs. Gaebel.
of
judgment
affidavit,
vacate the
to
porting
that
in the
that this court finds
that
event
was
matter
February
thereafter the
and
of
judgment
the
is
as to either
erroneous
hearing
hearing. At this
regular
for
set
them,
for
it must be reversed as to both
the
present in
Eck were
plaintiff
defendant
and
unit, binding
reason that it
both of them
counsel;
representing
counsel
person
by
and
one,
jointly,
to
and reversal as
Il-
throughout
the
present
was
Gaebel
law, operates
a reversal as
both.
linois
as
ap-
to enter
ask leave
not
hearing but did
answer, claiming that his
pearance or file
support
of
In
their assertion
er
of
longer a defendant
no
client was
Gaebel,
judgment against
ror as to the
Mrs.
entry of the
reason that the
cause for
Brown,
rely
defendants
Robinson
February
against
judgment
default
279;
Schwab,
Ill.
Bakula
Wis.
as
judgment of dismissal
operated as a
Eck
Evans, Cir.,
378;
N.W.
James
however,
pres-
was
Mrs.
to her.
136,and other
have examined
F.
cases. We
upon by each
witness, being called
ent as
unnecessary
and deem it
all the cases cited
testify.
party to
beyond stating that none is
discuss them
offered
Upon hearing all the evidence
proposition stated. Here
for the
authority
judge found that on
parties,
trial
default;
both
the court
defendants were
both
title
Mrs.
held
December
found,
judgment
against
but entered
so
posses-
had
Mrs. Gaebel
property and
petitioned
one;
successfully
that one
involved, and
apartment here
sion
judgment
and the
vacated
cause
have
rent
to and did
conspired
they
that
join in
reopened;
the other chose not to
year
lease for a
plaintiff under
apartment to
reopened proceeding, would no doubt
as
rent-
maximum
although the
month
a$65
had
permitted
she asked leave
have
He further
a month.
therefor
instanter;
al
answer
appearance and
to file
plaintiff
$266.67
defendants
that
found
supposed
instead she stood on
bar of
period
in excess
proceedings against
arising
her
out
further
October,
through
11, 1946
judgment.
colloquy pre
the vacated
as
paid defendants
plaintiff
hearing
of evidence
the cause
ceding the
renting of the
precedent to
condition
indicated his view that
vacat
the court
connivance
judgment
reopening
and
ing of the
defendants
the two
conspiracy between
argument
disposed of counsel’s
cause
compelling
and in
exacting
bonus
judgment
entry
against
the other
of the es-
in excess
pay a sum
operated
dismissal
as
as to the
defendant
ren-
He therefore
monthly rental.
tablished
not directed. Un
whom it was
against
against both
for
judgment
dered
are convinced that
we
der the circumstances
amount of
twice
defendants
correctly held that
case should
court
bonus, and for
overcharges and
defendants,
and that in
both
be retried
attorney’s fees.
did not then ask to
Mrs.
asmuch as
permitted
the default
relieved of
the record does be
contend
Defendants
heard,
not later com
she
could
plead and
against either of
judgment
sustain
not
been heard in defense
she had not
plain that
as to Mrs. Gaebel
is erroneous
them; that
having become
against
action
over her of the
jurisdiction
lost
her—
because
appearance,
to file
by her failure
in default
against Mrs.
cflsr
reward.
throughout the
the North Shore
she
in default
Star:
“$300.00
remained
a Desperately
to obtain
need
3 to 5-room
ceedings and was
entitled
Sunnyside 5196.” In re-
Phone number
circumstance
fortuitous
from the
benefit
upon sponse
Gae-
this advertisement
entered
judgment originally
that the
them
telephoned
arranged
fellow- bel
to show
and her
both herself
default
occupied
herself.
she then
not run
did
defendant
her own furniture.
then furnished with
raised
The issue
Plaintiff,
wife,
inspected
father
and his
n oneof
necessary
us to
fact,
and it is
place,
told
at that time
and Mrs. Gaebel
on the
introduced
consider
$65,
but she
ceiling
them
rent was
*4
determine whether
hearing in order to
for
wanted to
it
them furnished
rent
to
$85
com
charged in the
not she was liable as
however,
They agreed,
a
that she
month.
Act, keeping
of the
plaint for
violation
they
should remove her furniture and
would
of the Fed
52(a)
Rule
in mind that under
place
month,
at
a
take the
unfurnished
$65
Procedure,
U.S.C.A.,
28
eral Rules
Civil
agreed
he*
plaintiff
give
and
to
did
and
are not
findings
the District Court
pay
to
for
removal of
furniture.
$25
erroneous,
clearly
aside unless
to be set
plaintiff
Mrs. Gaebel testified that she told
Cir.,
Brothers,
Deligiannis
Tornello v.
7
180
letting
talk Mrs. Eck
she would
to
about
is
553,
that where
and
F.2d
plaintiff
apartment
year,
for
lease the
a
and
party
entitled
dispute,
prevailing
is
in
year’s
she
discuss the
that
did
matter
light
on review in the
to have it viewed
10,
Mrs. Eck.
lease with
On December
Grain &
to him. Grandin
most favorable
plaintiff
she took
his
to Mrs. Eck’s
and
wife
States, Cir.,
8
F.2d
United
170
Seed Co. v.
signed
There
latter
the fol-
Mason, Cir.,
425. See
Cashman
letter,
plaintiff: “This
lowing
addressed to
693,
Syrup Corp. v. Coca-Cola
F.2d
and
Cleo
you
is
that I
consented to the
to advise
have
416,
o.,
Cir.,
150 A.L.R.
139 F.2d
C
you
making
of a lease
Flora Gaebel to
given
1056,
appellee
the effect that
apartment
I
for the
have
her
rented
of all favorable inferences rea
benefit
apartment
is 2nd
4362 No. Ken-
**
*
evidence,
sonably to
drawn from
and
be
period
for a
of one
more Ave.
Coal,
Tennessee
Iron & R. Co. v. Muscoda year
January 1st
that
1947 and
123,
176, affirmed,
Cir.,
137 F.2d
Local
1 year.”
lease shall be
for
good
88 L.Ed.
321 U.S.
64 S.Ct.
that
Mrs. Eck testified
Mrs. Gaebel had
152 A.L.R.
that even where there is
give
her
her consent
let some-
asked
dispute
facts,
no
about the
if different rea
apartment
in
while she
live
her
was
may fairly
inferences
sonable
be drawn
Chicago
signed
and that she
out
evidence,
appellate
an
from the
for
consent,
paper
give
mentioned
above
findings
based on such
bidden
disturb
however,
admitting,
that she
it
had read
they
clearly
inferences unless
errone
signed
knowing
it. She denied
before she
ous.
lease,
a written
or that
was
principles
in her
Bearing these
in mind we
there had
conversation
turn
December, 1946,
apartment
renting,
as to the terms of
evidence.
to the
plaintiff
knowing the amount
apartment
of an
denied
owner
and
Eck was the
for rent. Plaintiff
paying
who
and his wife
had known
building, and
testified,
hand,
the other
years,
that Mrs.
was a tenant in
over
one both
her for
the lease and
it
occupied
to see
which she had
Eck asked
read
be-
apartments
signed the letter of consent.
she
Plain-
beginning
under lease
but
fore
since
he asked to have a
expiration
its
continuing on after
tiff testified
without
for renewal
lease included
registered
vision
building
any lease.
therein,
regulations
but Mrs.
“decided that she
housing,
did
rental
for
and
renewed,
mean,”
right
then
apart-
rental fixed for
want
I
maximum
later,
February,
in
January
a
A
question was
month.
and sometime
few
$40
ment
place
baby
a
buggy,
for
for
10, 1946,
he asked
a
plaintiff’s
days prior to
when
did not want
him she
children
Eck told
in Mrs.
placed
following advertisement
wife
building
disputed
though
and would not renew the and there is
evi-
credible
expired.
lease,
lease when it
dence
full
that she read the
hence had
knowledge of all its terms
When
moved into
and his wife
rental
provided
therein
in excess of the
Eck were
both Mr. and Mrs.
premises
established for
in-
it,
closet,
at work in
painting
Mr.
volved;
prepared
she
Mrs. Eck washing
cleaning.
a wall and
plaintiff’s occupancy;
after
took
Plaintiff gave Mrs. Gaebel three checks
possession
lease,
she continued
totalling
These,
testified,
Mrs. Gaebel
$325.
it,
exercise
entering
dominion over
without
paid
were
moving
her trouble in
her
his consent. We think these
estab-
facts
out,
furniture
securing
and “for
a lease
participation by
lished active
Mrs. Eck in
for him.” Admittedly
payments
these
transaction,
rental
entire
sufficient to
presence
made to Mrs. Gaebel outside the
charge
liability
overcharg-
her with
plaintiff paid
Mrs. Eck. And
rent of
es involved therein. To
her from
absolve
month
to Mrs.
Gaebel who
turn
liability
permitting
would amount to
Eck,
rent to Mrs.
month until
provisions
landlord to evade the
thereafter,
month
June
*5
by using dummy
Act
a
to execute a lease to
being
provided by
increase
a
one
15%
property.
circumstances,
Under these
voluntary
lease
between
entered into
plaintiff paid
we consider it immaterial that
Eck and Mrs.
Gaebel November 1947.
overcharges
all
to Mrs. Gaebel and did not
Both defendants testified that Mrs. Gaebel
receipt
part
establish actual
any
of such
had
never
Eck but
anything Mrs.
overcharges by Mrs. Eck.
wife,
month. Plaintiff’s
$46
however, testified that
asked her
Defendants have
urged entrap
once for the
rent.
claim,
ment as a defense to the
arising from
pay
the fact
advertisement to
1947,plaintiff
wrote Mrs. Gaebel
June
apartment.
for an
took
into
this
complaining that he
having
trouble
consideration in fixing the amount of the
with Mr. and Mrs. Eck who insisted on en-
damages..
We think
in the absence of
tering his
during the absence of
indicating
evidence
that the offer
bonus
of a
pretext
himself and his wife under the
purpose
was made in bad faith for the
“inspecting”
And
overcharge
foundation for an
laying a
testified that on one occasion he had
claim,
payment
bonus
other
tested to Mrs. Eck about
into the
overcharge does not constitute a waiver of
absence,
in their
and she had told
statutory right
recovery
for violation
right
get
them she
had a
time she
Compare
Brown,
of the Act.
O’Brien
wished.
N.E.2d
appears
Ill.
685. This
At the close of all the evidence the trial
us
consistent with the decisions
judge stated that
had observed
the wit-
Price
Act relied
Control
very
nesses on the stand and had listened
entrapment.
defendants on the issue of
attentively to all
testimony
and was con-
Tropp
See
Atlantic & Pacific Tea
Great
plaintiffs
that the
telling
vinced
Co.,
A.2d
Duna
N.J.Misc.
truth,
opinion
and that in his
con-
Co-op.
kin v. Southwestern Consumers
spiracy and connivance between Mrs. Eck
Ass’n,
49 N.M.
nite States United committed.” has been al., Co., 333 U.S. Gypsum et States United 542, L.Ed. 746.
364, 395, S.Ct. et al. v. MATSON
ARMSTRONG NAVIGATION CO. et al. et al. v.
CURRIE MATSON NAVIGATION CO. et al.
STEWART et al. v. MATSON
NAVIGATION CO. al. et
Nos. 12350. *6 Appeals
United States Court of
Ninth Circuit.
July 18, 1950. Aug. 28,1950.
As Modified