TRAVELERS INSURANCE COMPANY, Appellant, v. BUSY ELECTRIC COMPANY, Z. Kermit Remy and Raymond Voelker, Appellees.
No. 18778.
United States Court of Appeals Fifth Circuit.
July 17, 1961.
294 F.2d 139
As a part of this general argument some specific contention is made that the wife may not bring this action since she is not the holder of a judgment for the higher support payments ($700 per month) which she asserts she is rightfully due. This would indeed whipsaw her: she cannot get Illinois relief (in the Federal Court action) because Florida has not granted her a judgment; she cannot get Florida relief (increased award in the divorce court) because until set aside the supplement agreement extinguished all ownership of any value by Louis. Without the original trust property $700 per month could not be justified. It is doubtful that under
We simply say that as is true of many other cases too quickly disposed of on the pleadings, this case must go back for a suitable determination of the real merits. Demandre v. Liberty Mutual Ins. Co., 5 Cir., 1959, 264 F.2d 70; Carss v. Outboard Marine Corp., 5 Cir., 1958, 252 F.2d 690, at page 693, 1958 A.M.C. 638; Camilla Cotton Oil Co. v. Spencer Kellogg & Sons, Inc., 5 Cir., 1958, 257 F.2d 162, at page 167. On this remand the District Court has ample power to fashion a decree which, on the facts actually developed, justice between the parties requires. If, due to some overlapping or contingency caused by the inescapable intertwining of this and the state court action, it becomes advisable or essential to enter some sort of conditional decree that, too, is fully within the power of the Court on remand. United Gas Corp. v. Guillory, 5 Cir., 1953, 206 F.2d 49, at page 53; Travelers Ins. Co. v. Busy Electric Co., 5 Cir., 1961, 294 F.2d 139.
Reversed and remanded.
Michael J. Molony, Jr., Jones, Walker, Waechter, Poitevent, Carrere & Denegre, New Orleans, La., for defendant and appellant and third party plaintiff, the Travelers Ins. Co.
Dermot S. McGlinchey, Carl J. Schumacher, Jr., New Orleans, La., for third party defendant and appellee, Z. Kermit Remy and Raymond Voelker, d/b/a Busy Electric Co.; Lemle & Kelleher, New Orleans, La., of counsel.
Before CAMERON, BROWN and WISDOM, Circuit Judges.
It simplifies matters to talk of the parties as they actually are. The plaintiff, Numa Schomaker, was an employee of Busy Electric Company.1 Busy Electric had a contract with the Housing Authority of New Orleans (HANO) to make certain repairs to the electrical distribution system at one of its projects in the city. While Schomaker was engaged in performing this work, he was severely injured when a light pole broke at its base throwing him to the ground. Schomaker, as plaintiff, sued HANO.2 Taking full advantage of the permissible concept of notice pleading,
In its answer HANO, the defendant, after the usual denial, alleged that the injuries were caused by the contributory negligence of Schomaker, the plaintiff, in exposing himself to risks, failing to take precautions for his safety or to ascertain the condition of the wood pole before he climbed it. It also charged separately that Schomaker assumed the risk of using a pole which he knew to be unsound. As a further separate Sixth Defense, HANO alleged that it had contracted with Busy Electric to do repairs to its electrical distribution system and that the work being performed was under the sole control of Busy Electric. Consequently, it asserted, the injuries to Schomaker were “caused solely by the negligence of Busy Electric Company, its agents and employees * * *” for various reasons.3
JOHN R. BROWN, Circuit Judge.
We deal here with the problem of third party impleader sought by a defendant tort-feasor against another tort-feasor. Complicating what is otherwise a simple application of a rule simply stated,
As with so much of the business of the Federal District Courts in Louisiana, this started as a suit under the Direct Action Statute to transport a purely local controversy from its civil law surroundings to a common law oasis with its appealing jury trial.
To all of this Busy Electric, third party defendant, filed without supporting affidavits, depositions or facts of any kind a motion for “summary judgment * * * on the ground that Third-Party Complainant [HANO] * * * has no basis in law or in fact for its Third-Party Complaint against * * * Busy Electric * * *.” With no more illumination the Court, without stated reason, memorandum, or opinion, granted the motion for summary judgment and thereafter entered a formal decree “that judgment * * * is hereby entered * * * in favor of Busy Electric * * * dismissing the third party complaint * * *.” Simultaneously the Court made an express finding that there is no just reason for delay and directs the entry of judgment as to the 3rd party defendants, Busy Electric * * * as permitted under
At the outset we must determine the question raised by the Court as to our jurisdiction to hear the appeal. Considering the nature of this decree as one on summary judgment with an order of dismissal which carries with it (in the absence of the language negativing such purpose) the idea that it is with prejudice,
First, it fits the words of the Rule since the total pleadings present “more than one claim for relief * * * whether as a claim, counter-claim, cross claim, or third party claim * * *.”
On the merits we are equally clear that the dismissal was erroneous. Much of the difficulty comes from a failure to reckon with the basic nature of a complaint under the Rules. Busy Electric apparently persuaded the Court to read the pleadings as though that was all there was to the case. Of course, as we have so many times pointed out, this is not the test. Millet v. Godchaux Sugars, 5 Cir., 1957, 241 F.2d 264, at page 265, see n. 1; Colman v. Alcock, 5 Cir., 1959, 272 F.2d 618, at page 622. Phrased and rephrased it is reiterated in Conley v. Gibson, 1957, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80. “In appraising the sufficiency of the complaint we follow, of course, the accepted rule that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” 355 U.S. 41, at pages 45-46, 78 S.Ct. 99, at page 102. In the light of this, it is a risky course to stand on the pleadings and that is all that the summary judgment in this case amounted to. Demandre v. Liberty Mutual Ins. Co., 5 Cir., 1959, 264 F.2d 70, at pages 72, 74.
This approach is most spectacular in its application and consequences when we assay the theory which Busy Electric asserts here, and presumably did below, why the claim on the written indemnity agreement was insufficient to permit relief. Here is an express contract, note 4, supra, by which Busy Electric indemnifies HANO against personal injury claims asserted by third persons against HANO. Schomaker‘s suit is such a claim. By an adroit use of precise words and phrases out of HANO‘s Sixth Defense and third party complaint, Busy Electric erects a logical structure proving that under no circumstances could it be liable. First, it asserts, if HANO is not negligent, it will have no liability to Schomaker, and the indemnity will be unneeded and inconsequential. Next, if Schomaker was contributorily negligent, as HANO expressly alleges, there can be no liability, and indemnity is again useless. Third, if Busy Electric is solely at fault, HANO cannot be cast. Finally, if HANO is negligent along with Busy Electric, then it can have no indemnity since Busy Electric undertakes to indemnify only against its own negligence, and not that of HANO, or the joint negligence of both.
But this is too fine and too fast. Whether this contract is broad enough, or too broad, or specific enough or too specific to encompass within the promise of indemnity this particular occurrence will depend on what the facts ultimately show.6 There are infinite gradations of negligence and fault as we shall see in discussing the next phase of this case. Some are characterized by Louisiana
Concededly, the matter is or may be more involved when it comes to the claim based on general principles of contribution or indemnity unaided by the contractual hold-harmless agreement. The trouble arises from the substantive Louisiana law. The right of impleader, broad and flexible as it is, still speaks in terms of impleading “a person * * * who is or may be liable * * * for all or a part of the plaintiff‘s claim against” the impleader.
Whatever the difficulties as to contribution, the Louisiana law recognizes the substantive right of indemnity among those who may be characterized as joint tort-feasors at least in the sense that action by each has constituted a breach of some legal duty with resulting harm. The principle is voiced in these terms in the leading case of Appalachian Corporation, Inc. v. Brooklyn Cooperage Co., Inc., 1922, 151 La. 41, 91 So. 539, at page 541. The Court states that “where * * * the actual fault of the proximate cause of injury is attributable to one of the parties and the other is only technically or constructively at fault, from failure or omission to perform some legal duty, the general rule will not apply, and indemnity may be had against the one primarily responsible for the act which caused the damage.” The vitality of this case continues unabated. Marquette Casualty Company v. Brown, 1958, 235 La. 245, 103 So.2d 269, at page 273. “The Appalachian case is authority for the proposition that a joint tortfeasor who was only technically or constructively at fault can recover from the joint tortfeasor who was actually at fault.” Northwestern Mutual Fire Association v. Allain, 1954, 226 La. 788, 77 So.2d 395, at page 399, 49 A.L.R.2d 362.
This substantive right has existed at least since 1922. The recent Louisiana Third Party Practice Act of 19547 reflects also a substantive purpose to permit such right to be enforced, not only in a direct subsequent suit as
Busy Electric does not really challenge this. It overcomes this by again emphasizing the literal words of Schomaker‘s complaint which charges negligence of HANO “through their agents or employees, in failing to maintain the pole in safe condition * * *.” This, it asserts, demonstrates positively that the plaintiff‘s demand is not, as in Appalachian, based upon constructive or technical fault. But until the facts are established, how do we know whether this amounts to “affirmative” or “active” fault or, as contended by HANO, merely the assertion of a liability based on the landowner‘s pervasive duty to keep the premises in good repair?8
There are no other obstacles to the use of
There are, without a doubt, serious complications when we come to the matter of contribution, as distinguished from indemnity. This Court in Linkenhoger v. Owens, 5 Cir., 1950, 181 F.2d 97, expressly rejected a series of cases by one United States District Judge in Louisiana allowing an impleader of a joint tort-feasor under
If this remains the substantive law of Louisiana, then, of course, impleader under
This has brought us to an extended consideration—both on argument and by supplemental briefs requested by the Court—of the Louisiana Third Party Practice Act of 1954, see notes 7, supra and 12, infra. That has not been done to find, and then perhaps utilize, a procedural device over and beyond those prescribed in the Federal Rules. There is no need of that, even assuming the propriety of doing so. Rather, the inquiry is to determine whether through modifications in its procedural mechanisms, Louisiana has modified the rigors of this substantive rule which confessedly seems to have little to offer in its support and which, as Linkenhoger, supra, reflects, often brings about harsh results with no compensating benefits.11
Undoubtedly there were many who thought that that was precisely one of the major purposes and effects of the 1954 Third Party Practice Act. Designed as it was to extricate the law from the deficiencies in the old system of Calls
The first was Automotive Finance Co. v. Daigle, La.App.1955, 80 So.2d 579, in which Judge Tate reviewed the history of the Third Party Practice Act and reversed a refusal of the Trial Court to allow an impleader of the original payee and transferor of a note given in payment of an automobile. This was based both upon a claim by the defendant against “his warrantor,” see note 7, supra, and also on the clause which tracks the Federal Rule as one “who is or may be liable to him for all or part of the principal demand.” This was followed in a similar case by Motors Securities Co. v. Hines, La.App.1956, 85 So.2d 321, 323. Judge Gladney remarked, “Manifestly, the adoption of the Third-Party Practice Act * * * came as a result of dissatisfaction with procedural limitations encountered in actions relating to personal warranty arising under C.P.Art. 378 * * *.” Referring to Judge Tate‘s opinion he went on, “[This] viewpoint * * * is consistent with the end sought to be achieved by the authors of the
But whatever optimistic expectations there were, they were shattered by Kahn v. Urania Lumber Co., La.App.1958, 103 So.2d 476. There the defendant, the operator of a truck negligently causing the decedent‘s death, sought to implead the owner-operator of the other vehicle involved in the collision. Starting with the premise that the substantive Louisiana rule was correctly stated by us in Linkenhoger, supra, the Court holds that the “* * * statute is clearly procedural in character and a study thereof discloses no intention on the part of the Legislature to effectuate a change in the substantive law as pertains to the right of contribution as between joint tortfeasors * * *.” 103 So.2d 476, at page 481.
There is much to indicate that perhaps the Court was influenced in this conclusion by an uncritical reliance on one phase of Linkenhoger. The opinion points out “In the Linkenhoger case it was recognized that no substantive rights were conferred by the procedural statute.” 103 So.2d 476, at page 481. The procedural statute there involved was, of course,
That introduces a further and most interesting complication. For by
We do not undertake to decide that neat and delicate question. Nor do we question at this stage the binding effect of Kahn as the latest and most authoritative expression of Louisiana Courts under Erie. See National Surety Corp. v. Bellah, 5 Cir., 1957, 245 F.2d 936, at page 941, and Bernhardt v. Polygraphic Company of America, 1956, 350 U.S. 198, 76 S.Ct. 273, 100 L.Ed. 199; Sullivan v. Shell Oil Company, 9 Cir., 1956, 234 F.2d 733, at pages 741-742 and note 4. A precise determination is not required in the present posture of this case. We have previously pointed out that the impleader must be allowed to permit the assertion of the claim based on contractual indemnity. Likewise, it must be permitted under the claim for indemnity based upon the Appalachian and related tort principles. Additionally, impleader must be allowed to determine whether the actual facts amount to nothing more than a claim of contribution so that a claim will not exist in fact under the tort indemnity theory. This itself is sufficient to allow impleader even though on the full development of the facts, no basis for recovery could be made out. 3 Moore, Federal Practice § 14.11 at 428.
In any event, as to either one or both of the claims based on contractual indemnity and tort indemnity the underlying evidentiary facts will be identical. Moreover, such facts will be identical on a theory of contribution. All that will vary will be the operative legal effect of such facts when and as found. Under some theories HANO might recover in whole or in part. On others it might recover nothing from Busy Electric. But that will depend upon the applicable principles of law to be applied to those facts as found. By the time this case is tried upon its merits, it may well be that Louisiana Courts will have spoken further as to this problem. Consequently this case is an ideal one for the use of the flexible mechanism of special interrogatories with appropriate instructions under
With the evidence on all the issues—those clearly in the case under existing substantive Louisiana law as well as those perhaps contingently in the case
Reversed and remanded.
CAMERON, Circuit Judge (dissenting).
If I felt that this Court had jurisdiction of this appeal, I would be constrained to concur in the result reached in the able and lucid opinion of the majority. But I do not think that the judgment before us is one from which appeal should lie. It is important to keep in mind that final judgments are appealable only if made so by statute. Basically, judgments of district courts are appealable to this Court only if they dispose of all of the issues as they relate to all of the parties.
The judgment here before us disposes of only one issue as to which the plaintiff, who brought the action and ought to have major control over the route it takes, is, so far, an uninterested bystander. Unless the third party practice vests those who participate in it with a stature superior to that of the party whose action this is,—and I do not understand that the majority opinion so infers—I think prior decisions of this Court have decided the issue before us in a way with which this decision is at war.
Meadows et al. v. Greyhound Corporation, 5 Cir., 1956, 235 F.2d 233, furnishes, in my opinion, a good illustration, although the majority does not consider it contrary to its present holding. Meadows et al. claimed that Greyhound and the driver of the car, which collided with the bus on which they were passengers, were liable to them for personal injuries negligently inflicted upon them. The trial court granted Greyhound‘s motion for summary judgment, leaving the action pending as between Meadows et al. and the driver of the other car. There was no doubt that the judgment was final as between Greyhound and appellants, or that it afforded adequate basis for a plea of res judicata on Greyhound‘s part. The trial court certified that there was no just reason for delay, and directed the entry of a judgment as between Meadows et al. and Greyhound. Nevertheless we held that the judgment in favor of Greyhound was not appealable and dismissed the appeal. I think the principles upon which that case was based are controlling here and require that we dismiss this appeal. And compare King v. California Co. et al., 1955, 224 F.2d 193, and King v. California Co. et al., 1956, 236 F.2d 413, where the reasons underlying this course of action are discussed.
I think that the appellate courts have too much important work to do to warrant displacing it by consideration of piecemeal appeals such as I consider this one to be, upon which the majority has manifestly done a large amount of work. I therefore respectfully dissent.