15 F.R.D. 125 | S.D.N.Y. | 1953
Plaintiff, a seaman, filed a complaint, in a suit under the Jones Act, 46 U.S. C.A. § 688, against defendant, alleging, that, while in the employ of defendant on its vessel the S.S. Constitution he-was injured by the unprovoked assault
The second cause of action is for maintenance and cure.
The defendant’s answer denies the aforesaid allegations of the complaint and pleads a complete defense of contributory negligence.
After answering, defendant, pursuant to notice, examined plaintiff upon oral deposition and learned that the assault was committed by a fellow seaman, Reyes, in a dispute over the use of the writing table in the quarters occupied by plaintiff and Reyes on the S.S. Constitution.
Defendant now moves under Fed. Rules Civ.Proc. rule 14(a), 28 U.S.C.A., to implead Reyes as third-party defendant and in a proposed third-party complaint demands judgment over against Reyes for any sums which plaintiff may recover against defendant, which motion plaintiff resists.
Plaintiff has chosen to assert no claim against Reyes. Since, under amended Rule 14(a) defendant can no longer move to implead a third party on the ground that he is or may be liable to plaintiff, this attempt to implead Reyes must fail unless defendant can work out some theory on which the third party might be liable over to it other than by way of contribution, i. e., on a theory of indemnity.
This the defendant has done. Defendant’s omission to adequately staff its vessel and guard against Reyes’ assault on plaintiff, if such there was, may be found to have been passive and did not ripen into a cause of action in favor of plaintiff until the perpetration of the active tort by Reyes. If it is so found,
In view of the foregoing, no opinion is expressed on defendant’s further contention that Reyes agreed to indemnify defendant against liability for his active negligence when he signed the ship’s Articles of Agreement.
Motion granted. Settle order.
. Moore’s Fed.Prac., 2d Ed., Vol. 3, par. 14.11, at p. 429.
. Moore’s Fed.Prac., 2d Ed., Vol. 3, par. 14.11, at p. 428.
. Restatement of Law of Agency, § 401, Comment c, Vol. II, at p. 914.
. Greenleaf v. Huntingdon & B. T. M. R. & Coal Co., D.C.Pa., 3 F.R.D. 24.