Fidelity & Casualty Co. of New York v. Federal Express

• Decision Date: 03 June 1943
• Docket Number: No. 9398.,9398.
• Citation: 136 F.2d 35
• Parties: FIDELITY & CASUALTY CO. OF NEW YORK v. FEDERAL EXPRESS, Inc., et al.
• Court: U.S. Court of Appeals — Sixth Circuit

136 F.2d 35 (1943)

FIDELITY & CASUALTY CO. OF NEW YORK v. FEDERAL EXPRESS, Inc., et al.

No. 9398.

Circuit Court of Appeals, Sixth Circuit.

June 3, 1943.

H. Melvin Roberts, of Cleveland, Ohio (Howell, Roberts & Duncan, H. Melvin Roberts, and William D. Howell, all of Cleveland, Ohio, on the brief), for appellant.

John R. Kistner, of Cleveland, Ohio, for appellees.

Before HICKS, SIMONS, and McALLISTER, Circuit Judges.

McALLISTER, Circuit Judge.

The Fidelity & Casualty Company of New York brought suit in the district court against appellees to secure indemnity for payment of a judgment rendered in a negligence action in which both parties were codefendants. From an order of dismissal, the Casualty Company appeals. Appellant will herein be referred to as plaintiff, and appellees as defendants, the capacities in which they appeared in the district court. The following is the factual background of the present appeal.

Wenzlawski and Grolbert, doing business as the Akron-Kansas City Motor Freight Company, were insured against accident liability by the Fidelity & Casualty Company of New York. While Wenzlawski was driving a company truck on the night of May 2, 1932, he collided with another truck owned by Federal Express, Inc., in which Kepple Barrett was riding as a passenger. As a result of the collision, Barrett was killed; and his administrator sued Wenzlawski and Grolbert, as well as Federal Express, Inc., and Burdette, its driver, for damages growing out of the alleged negligence of all defendants in causing Barrett's death. The Casualty Company defended on behalf of Wenzlawski and Grolbert and, on trial before a jury, a verdict was entered against them. The jury found the other defendants, Federal Express, Inc., and Burdette, free from the negligence charged. Judgment was entered against Wenzlawski and Grolbert and, upon affirmance by the Ohio Court of Appeals, and denial of appeal by the Supreme Court, the judgment was paid by the insurer.

Thereafter, the Casualty Company filed a petition in the district court, setting forth that its insured, and others, had been sued by Barrett's administrator for damages for wrongful death; that a judgment had been obtained against plaintiff's insured, which it paid; that defendants were guilty of active and positive negligence and recklessness, directly causing the collision; that the death of Barrett resulted proximately therefrom; and that plaintiff's insured were free from any negligence causing the accident. The district court sustained a demurrer on the ground that plaintiff did not state a cause of action.

On the prior appeal to this court, plaintiff insisted that its liability was only secondary and that it was entitled to have adjudication of the question of defendant's primary liability and restitution for payment by plaintiff of the judgment in the negligence case.

On the issue thus presented, this court held that one who was secondarily liable in a tort action had a right of recovery against a joint tort-feasor, where the primary or active fault rested upon the latter; and that inasmuch as the question of plaintiff's secondary liability (which was the only issue upon which plaintiff relied) had not been presented or decided in the district court, the judgment on demurrer was reversed and the case remanded for trial. Fidelity & Casualty Co., of New York v. Federal Express, Inc., et al., 6 cir., 99 F.2d 681.

Thereafter, in the district court, defendants, in effect, substituted for their demurrer an expanded defense by way of answer to plaintiff's petition, in which they pleaded that, in the negligence case, they had been charged by Barrett's administrator as jointly liable with plaintiff's insured; that such insured had defended on the ground that the negligence of defendants herein was the sole and proximate cause of Barrett's death; that the jury had found plaintiff's insured liable, entirely exonerating defendants from any liability for negligence, — on which verdict judgment was entered; and that, thereby, plaintiff was estopped by the judgment in the negligence case and barred from further prosecution of its suit. Furthermore, defendants set forth in their answer that plaintiff's insured had been guilty of carelessness and that their negligence was the proximate cause of the injuries and damages in question. To this, plaintiff filed reply, admitting "that its assured, Wenzlawski and Grolbert, were guilty of carelessness and were negligent, proximately resulting in the injuries and damages for which plaintiff claims," but denying that plaintiff was estopped by the judgment in the negligence case.

The lengthy proceedings between the parties hereto, from which emerges the single legal question whether plaintiff was secondarily liable and thereby entitled to indemnity, is complicated and confused by pleadings which include a petition, an answer, an amended answer, a demurrer, an amended petition, a demurrer to the amended petition, and a second amended answer, in which plaintiff claimed that its insured were free from all negligence; that the accident was caused by the sole negligence of defendants; that plaintiff's liability was only secondary because of "passive negligence"; that defendants' negligence was "active"; and that Barrett's death resulted directly and proximately from the conduct of defendants.

On the prior appeal in this court, it appeared that defendants herein had been codefendants with plaintiff's insured in the negligence case, and had therein been adjudged free from liability to Barrett's administrator. But it did not appear that defendants herein had been charged with concurrent negligence; that the administrator on the trial of the negligence case clearly tendered the issue that defendants' negligence was concurrent with that of plaintiff's insured; that plaintiff's insured defended on the ground that they were not guilty of concurrent negligence, and that defendants' negligence was the sole cause of the accident; and that, on the issue so presented, the jury had found plaintiff's insured guilty of the negligent act that caused the damages, and defendants, free from any negligence whatever.

On the former appeal in this court, defendants' demurrer, in the district court, had merely denied that plaintiff's petition stated a cause of action. In defendants' answer, filed subsequent to our remand, all of the foregoing was disclosed; and, thereafter, as heretofore mentioned, there was clarified for the first time, in plaintiff's reply to defendants' second amended answer, one point upon which plaintiff had taken an entirely different stand — an admission that the parties to whom it was subrogated, had been guilty of negligence, proximately resulting in the injuries and death of Barrett. It may be said that such admission was compelled from the inherent nature of the case, as disclosed by the present pleadings, and by what had taken place in the prior negligence action, as revealed therein.

Upon the above-mentioned pleadings, filed subsequent to our remand, the district court, on defendants' motion for summary judgment, dismissed plaintiff's petition; and it is from such judgment that plaintiff now appeals.

Although many interesting questions are submitted for consideration, the appeal, stripped to essentials, presents one issue — whether a tort-feasor has a right of indemnity from another tort-feasor, where by their joint and concurrent act of negligence, they have injured a third party.

At the outset, it is to be observed that an indemnitor of a tort-feasor can have no right to contribution from one in the relationship of a joint tort-feasor with the indemnitee, if the indemnitee would not have had such right. The Casualty Company in this case, stands in the shoes of its insured. Royal Indemnity Co. v. Becker, 122 Ohio St. 582, 173 N.E. 194, 75 A.L.R. 1481.

Plaintiff bases its right to indemnity on the ground that it is only secondarily liable for payment of the damages It claims that the question of primary and secondary liability was not adjudicated in the death case; that the codefendants were not adversary parties therein; that there is no way in which this issue of primary liability could have been raised or passed upon as between codefendants in a negligence case; and that on this controversy, it is entitled to its day in court, which it has not had, being deprived thereof by the dismissal of its petition. If plaintiff is not entitled to trial of the issue of such secondary liability, the judgment of dismissal should be affirmed. It may be remarked that plaintiff here seeks indemnity rather than contribution; but insofar as this case is concerned, the rules governing both subjects are equally applicable.

At this point it becomes necessary to consider what was determined in the prior negligence case. There, Barrett's administrator charged plaintiff's insured and the defendants herein, with joint negligence in operating their trucks at an excessive rate of speed and colliding while trying to go by each other on a bridge too narrow to permit of passage of two trucks coming from opposite directions. Plaintiff's insured defended in the death case on the ground that the negligence of defendant driver was the sole and proximate cause of Barrett's injuries and death. The jury found plaintiff's insured guilty of negligence and exonerated defendants of liability. On appeal (Wenzlanski v. Allen, Adm'r, 51 Ohio App. 482, 1 N.E.2d 1018, 1019), the court stated that the evidence offered by defendants herein "was such as to indicate that the collision was due entirely" to the negligence of plaintiff's insured; that the testimony of plaintiff's insured was such as to indicate that defendants' negligence was the sole cause of the accident; and that the record was such that "the jury could not very well do otherwise than find in favor of one of said outfits and against the other." On the claimed error that the judgment was not supported...