of his complaint is that he is entitled on his facts to relief from one or the other of the named defendants. The facts are all connected with and arise out of a single transaction; a single relief is demanded. Both defendants are interested adversely to the plaintiffs and adversely to each other." See, also, the English case, Payne v. British Time Recorder Co., 2 K.B. 1 (1921).
Had the plaintiff joined Wendell in the original declaration with the defendant corporation, she would have asserted against him in the alternative a right to relief based on his negligence in respect of and arising out of the same transaction or occurrence which gave rise to her claim for relief against the defendant corporation. The transaction or occurrence was the loss of a valuable right, that is, her cause of action against the estate of Charles Newburgh for damages on account of personal injuries sustained by her due to the negligence of the deceased.
The question of fact common to both defendants, Wendell and the corporation, in such case would be (1) whether the plaintiff had a cause of action for damages against the estate of Charles Newburgh, deceased; and (2) whether she asserted that cause of action.
In the first two counts of the declaration she really resorts to alternative pleading, thus disclosing that she is not certain whether she abandoned her right to relief because of an oral contract with the defendant corporation or because of the false representations of that defendant. The alternative may be pursued still further if Wendell is joined as a defendant by alleging that this right to relief was forever lost because of his negligent failure to proceed in time.
Therefore, under Rule 14, the plaintiff may amend her complaint if she so desires and assert against the third party defendant, Wendell, her claim for damages sustained because of his negligence. This she could have done in the beginning, but elected not to do so.
It is pointed out that Rule 14 permits the third party defendant to assert any defenses which the third party plaintiff has to the plaintiff's claim, and so it is argued that this is not a proper case for third party procedure because the obvious defenses of the defendant corporation are not available to the third party defendant. Furthermore, it is urged that the provision of Rule 14 to the effect that "the third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, as well as of his own to the plaintiff or to the third-party plaintiff," lends weight to the argument that the rule can not be made applicable.
The defendant corporation has answered the complaint and denies that the collision resulting in the injuries to the plaintiff was due to the negligence of Charles Newburgh, deceased. This defense would be available to the third party defendant. The defendant corporation also denies that it entered into the verbal agreement with the plaintiff, and denies that it made the fraudulent representations. With these defenses the third party defendant is not concerned, and he can not thus defend the charge of negligence.
It is not contended that there is a joint liability.The amended complaint can not proceed upon that theory. The joined claims are not independent claims but alternative claims, as we have seen, and judgment can not go against both defendants. One or the other is liable to the plaintiff. Therefore, a judgment against the defendant corporation can not be collected from the third party defendant, Wendell, and that is true also in case judgment is rendered against Wendell. It can not be collected from the defendant corporation.To hold otherwise would be to defeat the very purpose of the rule in all case where the third party defendant was charged with being wholly responsible for the claim asserted against the original defendant and the court or jury found in favor of such third party defendant.
In a case where the third party defendant is liable to the third party plaintiff in contribution or indemnity, then "the third-party defendant is bound by the adjudication of the third-party plaintiff's liability to the plaintiff, etc." The question is not involved here. The third party plaintiff is not seeking contribution or indemnity. By its third party complaint the defendant corporation simply tenders to the plaintiff a third party defendant, who, it is alleged, is liable for all of the claim asserted against it.
If the plaintiff declines to amend the complaint and assert a claim for relief against the third party defendant, the Court is inclined to believe that judgment can not be awarded against the third party defendant, Wendell, in favor of the plaintiff.
See Jensen v. Bank Line, 2 Cir., 26 F.2d 173; Burns Bros. v. City of New York, D.C., 22 F.Supp. 55. However, that question is not now presented.
The same questions here discussed are involved in the case of Robert L. Crim v. Lumbermens Mutual Casualty Co., Law No. 90550, pending in this court.
The motion to vacate the order granting leave to file the third party complaint is overruled in both cases, Law No. 90549 and Law No. 90550.
© 1992-2004 VersusLaw Inc.