Bartlett v. Davis Corporation

The opinion of the court was delivered by This is an action for indemnity arising from a judgment for damages for the wrongful death of plaintiffs' decedents, two young boys who drowned in a sand and gravel pit owned by appellant Davis Corporation (hereafter referred to as Davis) and operated by Marinus Heersche, d/b/a Wichita Big River Sand Company (hereafter referred to as Heersche). The wrongful death judgment against Davis and Heersche was affirmed by this court in Bartlett v. Heersche, 204 Kan. 392, 462 P.2d 763, which will be referred to as the Bartlett case. Encompassed in the Bartlett appeal was an appeal by Davis from a trial court ruling dismissing its cross petition against Heersche for indemnity. After judgment was entered in the Bartlett case, Heersche filed a third party complaint bringing in his insurer, the Iowa Mutual Insurance Company of DeWitt, Iowa, and also Iowa's general insurance agents in Kansas — R.C. Sugden, Sugden Insurance Agency, Inc., and Insurance Services of Kansas, Inc. In the Bartlett appeal, in addition to affirming the wrongful death judgments against Davis and Heersche, this court reversed the trial court's ruling dismissing Davis's cross claim for indemnity against Heersche. Thereafter the indemnity question framed by Davis's cross petition was presented to the trial court which ultimately determined that Davis was not entitled to indemnity. Davis has appealed from that ruling.