Alaska S. S. Co. v. Pacific Coast Gypsum Co.

• Decision Date: 18 December 1912
• Citation: 71 Wash. 359,128 P. 654
• Court: Washington Supreme Court
• Parties: ALASKA S. S. CO. v. PACIFIC COAST GYPSUM CO.

128 P. 654

71 Wash. 359

ALASKA S. S. CO. v. PACIFIC COAST GYPSUM CO.

Supreme Court of Washington

December 18, 1912

Department 1. Appeal from Superior Court, Pierce County; M. L. Clifford Judge.

Action by the Alaska Steamship Company against the Pacific Coast Gypsum Company. Judgment for defendant, and plaintiff appeals. Reversed, and new trial granted.

Bogle Graves, Merritt & Bogle, of Seattle, and Huffer, Hayden &amp Hamilton, of Tacoma, for appellant.

John P. Hartman, of Seattle, and Hayden & Langhorne, of Tacoma, for respondent.

PARKER J.

The Alaska Steamship Company brought this action in the superior court for Pierce county to recover over the sums it was required to pay in settlement of damages for personal injuries resulting to two longshoremen, its employés, from a defective hoisting appliance belonging to the defendant, and used in unloading gypsum rock from one of the plaintiff's ships at the defendant's wharf and plant in Tacoma. The cause proceeded to trial before the court and a jury, when, at the close of the evidence introduced in behalf of plaintiff, counsel for the defendant moved the court as follows: 'The defendant moves the court to grant a nonsuit in this case upon the ground and for the reason that the plaintiff has failed to make a case sufficient to submit for the consideration of the jury. The particular ground of the motion is that under the evidence in this case both the Alaska Steamship Company and the Pacific Coast Gypsum Company were joint wrongdoers, and as between joint wrongdoers no right of contribution exists. That the evidence plainly shows that the Alaska Steamship Company had notice of the condition the hook was in, and that if they did not have actual notice a reasonably careful inspection would have disclosed the condition of the hook, and that the Alaska Steamship Company could not, knowing the hook was in a defective condition, use it to the injury of their men, and then attempt to subject the Pacific Coast Gypsum Company to a suit for damages.' We quote this motion in full, to the end that the theory of counsel's contention may be clearly before us. This motion was granted by the court, and judgment entered accordingly. From this disposition of the cause, the plaintiff has appealed.

Appellant is a corporation engaged in the transportation business between Puget Sound and Alaska ports. Respondent is a corporation engaged in the business of manufacturing gypsum, and for that purpose maintains a plant and wharf in Tacoma, procuring gypsum rock therefor from its mine in Alaska. At its wharf in Tacoma, respondent maintains hoisting gear, consisting of a derrick with cables, buckets equipped with tripping appliance, and an electric motor for operating the same, which it uses in discharging cargo from the holds of ships. On April 5, 1909, appellant entered into a contract with respondent for the transportation of gypsum rock from its mine in Alaska to its wharf in Tacoma. This contract is in the form of a letter from appellant to the respondent, and an acceptance of the terms thereof, indorsed thereon by respondent. The provisions of this contract, which we are here required to notice, are as follows: 'It being understood and agreed, in connection with delivery of cargo at Tacoma, that you will from date this agreement goes into effect furnish necessary hoisting gear to work cargo from one hatch of steamer, * * * and take cargo from us as fast as we can deliver it. It is also understood and agreed, in connection with delivery of cargo at Tacoma, that 'taking cargo from us as fast as we can deliver it' means as fast as we can shovel into buckets in hatches from which you are hoisting cargo with your gear.' Appellant proceeded under this contract to transport gypsum rock; its ships arriving at respondent's wharf in Tacoma at somewhat irregular times, which were from two to six weeks apart. The ships were discharged in the manner agreed upon; respondent's hoisting gear, buckets, tripping appliance, and electric motor being used therefor and operated entirely by respondent's own servants, excepting that the buckets were filled while in the hold of the ship, and the hook on the end of the hoisting cable attached to the buckets by the appellant's employés just before hoisting the buckets out of the hold. The hoisting gear was at all times in the possession and control of respondent, it being the owner thereof, during the intervals occurring between the discharging of appellant's ships; and even while the ships were being dicharged appellant had nothing to do with the hoisting gear, save to fill the buckets and attach the hook to them for hoisting. On February 28, 1910, appellant's steamship Olympia was being discharged of a shipment of gypsum rock at respondent's wharf. While one of the buckets was being hoisted, filled with gypsum rock, it was prematurely dumped on account of the worn and defective condition of the tripping appliance attached to the hook, and the rock thereby caused to fall back into the hold of the ship upon and seriously injuring two of appellant's employés, who were there engaged in filling the buckets. Appellant was required to compensate these employés on account of the injuries thus suffered by them. While appellant compensated its injured employés without judgment being rendered against it therefor, no question is here made as to its liability to them, nor as to the amount thereof. It is to recover from respondent the sums so paid by appellant to its injured employés that this action was brought.

Counsel for respondent rest their claim of exemption from liability to appellant upon the general rule that there is no right of contribution between joint tort-feasors; while counsel for appellant insist that the evidence introduced in its behalf upon the trial was sufficient to require submission to the jury of the question whether appellant was a joint wrongdoer with respondent, as between themselves, though they were admittedly such, in so far as the rights of appellant's injured employés are concerned. These were the only questions involved in respondent's motion for nonsuit and the trial court's decision thereon, and our present field of inquiry is not extended by the contentions here made.

The general rule of nonliability for contribution and indemnity as between joint wrongdoers is easy of statement, and rests upon the soundest principles of public policy. But the exception to this general rule, or rather the question of when the joint wrongdoers are not jointly in the wrong as between themselves, yet are such in the eyes of the law as to third parties, is often a problem of difficult solution. In 1 Cooley on Torts (3d Ed.) 254, that learned author observes: 'As under the rules already laid down the party wronged may, at his election, compel any one of the parties chargeable with the act, or any number less than the whole, to compensate him for the injury, it becomes a consideration of the highest importance to the person or persons thus singled out and compelled to bear the loss whether the others, who were equally liable, may be compelled to contribute for his relief. On this subject there is a general rule, and there are also some very important exceptions. The general rule may be found expressed in the maxim that no man can make his own misconduct the ground for an action in his own favor. If he suffers because of his own wrongdoing, the law will not relieve him. The law cannot recognize equities as springing from a wrong in favor of one concerned in committing it. But there are some exceptions to the general rule which rest upon reasons at least as forcible as those which support the rule itself. They are of cases where, although the law holds all the parties liable as wrongdoers to the injured party, yet, as between themselves, some of them may not be wrongdoers at all, and their equity to require the others to respond for all the damages may be complete. There are many such cases where the wrongs are unintentional, or where the party, by reason of some relation, is made chargeable with the conduct of others.' And at page 258, referring to the attempted general statements of the rule of the exceptions, he further observes: 'An attempt has been made in some cases to lay down a general rule by which it may be determined in every case whether the party is or is not entitled to contribution. Thus, in Ohio, the judicial conclusion is that 'the common sense rule and the legal rule are the same, namely, that when parties think they are doing a legal and proper act, contribution will be had; but when the parties are conscious of doing a wrong courts will not interfere.' This statement is a little inaccurate, in that it denies redress in the cases only in which parties are conscious of wrongdoing. There are many cases in which the absence of consciousness of wrong could not excuse a man, either in law or morals. An English case states the rule more concisely as follows: 'The rule that the wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.' If he knew the act was illegal, or if the circumstances were such as to render ignorance of the illegality inexcusable, then he will be left by the law where his wrongful action has placed him.'

In Washington Gas Co. v. District of Columbia, 161 U.S 316, 327, 16 S.Ct. 564, 568 (40 L.Ed. 712), Justice White, speaking for the court, quoted approvingly from Lowell v. Boston & Lowell R. Co., 23 Pick. (Mass.) 24, 32 (34 Am. Dec. 33), as follows: 'Our law, however, does not in every case disallow an action by one wrongdoer against another to recover damages incurred in consequence of their joint...