American Auto. Ins. Co. v. Molling

• Decision Date: 02 April 1953
• Docket Number: No. 35775,35775
• Citation: 239 Minn. 74,57 N.W.2d 847
• Parties: AMERICAN AUTO. INS. CO. v. MOLLING.
• Court: Minnesota Supreme Court

Page 847

57 N.W.2d 847

239 Minn. 74

AMERICAN AUTO. INS. CO. v. MOLLING.

No. 35775.

Supreme Court of Minnesota.

April 2, 1953.

Syllabus by the Court.

In order for a right of contribution to accrue between tort-feasors, they must be cotort-feasors or joint wrongdoers in the sense that their tort or torts imposed a common liability upon them to the party injured. A person compelled to discharge a liability for a tort cannot recover contribution from another whose participation in the tort gave the injured party no cause of action against him.

It is, therefore, a good defense to an action for contribution to allege that defendant is, and was at the time of the alleged tort, the spouse of the injured party and, consequently, immune from liability to such spouse since this lack of liability to the injured party destroys one of the essential elements of an action for contribution. Freeman, King, Larson & Peterson and Robert L. Hoppe, Minneapolis, for appellant.

Sexton, Tyrrell & Jardine, St. Paul, for respondent.

LORING, Chief Justice.

This is an action for contribution. Defendant in this action, Orville Molling, while driving his automobile, collided with an automobile owned by Alma and Robert Jerred and driven by Darrel Johnson. Defendant's wife, a passenger in her husband's automobile, brought an action for personal injuries against the Jerreds as statutory principals of their driver. This defendant also brought an action against the Jerreds for damages to his automobile, and the Jerreds counterclaimed against him for the damages to their automobile. These actions were consolidated for trial. Defednant's wife recovered a judgment for $2,324.16. The Jerreds recovered a judgment for $499.41 against this defendant.

Plaintiff in this action, as the insurer of the Jerreds, satisfied Mrs. Molling's judgment against the Jerreds. Now, subrogated to the rights of the Jerreds, plaintiff brings this action to compel defendant, as a joint tortfeasor, to contribute to the payment of that judgment, contending that the joint negligence of Mr. Molling was established by the judgment against him in favor of the Jerreds.

In his answer, defendant denied any negligence on his part and further pleaded that, as the husband of Mrs. Molling who had recovered the original judgment, he was immune to any action by her and, consequently, not liable in an action by this plaintiff for contribution. The trial court denied defendant's motion for judgment on the pleadings and sustained a demurrer to defendant's allegation of marital immunity. The allegation denying negligence was stricken on the grounds that the judgment against Mr. Molling in favor of the Jerreds was Res judicata on that issue. ¹ The action went to trial on the sole issue of whether or not the Jerreds' driver was guilty of wilful negligence and of an intentional and purposeful violation of the statutes, thereby relieving defendant from contribution. ² A verdict was rendered for plaintiff and judgment entered thereon. Defendant appeals from this judgment. He asks for reversal of plaintiff's judgment, which entails a review of the court's order sustaining plaintiff's demurrer to the paragraphs of the answer alleging marital immunity, and also a review of the order denying defendant's motion for judgment on the pleadings. He asks for direction of judgment in favor of defendant.

It is agreed by the parties that the sole question presented to this court is whether or not a husband whose negligence contributed to the injury of his wife is liable to a joint tortfeasor for contribution to a judgment obtained by the wife against that joint tortfeasor.

It is clear that Mrs. Molling could not have maintained an action against her husband for any injuries received as a result of his negligence, since in this state one spouse cannot maintain a tort action against the other during coverture. Strom v. Strom, 98 Minn. 427, 107 N.W. 1047, 6 L.R.A., N.S., 191; Woltman v. Woltman, 153 Minn. 217, 189 N.W. 1022. And, while the present action is not by the wife against the husband but is brought against the husband by the subrogee of his joint tortfeasor, ³ nevertheless the immunity of the husband from liability to his wife does destroy a necessary element of the action for contribution and, consequently, is a good defense to such an action.

The very essence of the action of contribution is 'common liability.' Plaintiff admits that this is true as a general statement but insists that such a qualification has developed without regard to its implications and urges that the real basis for the action of contribution is, or should be, the common tortious conduct. Plaintiff urges that the marital immunity does not change the character of the acts and that defendant should be compelled to compensate plaintiff even though he could not be held liable in a suit by the injured party.

An examination of the history of the action for contribution shows that originally the action was not allowed between wrongdoers but was principally resorted to as between sureties. The true basis of this action may be discovered in such applications.

'The doctrine of contribution, * * * is applied to cases where several persons are under a Common liability to one, when equity will distribute the burden among the obligors in proportion to their respective shares; or when one has already paid the whole, the rest will be forced to contribute ratably to reimburse him To the extent to which he has discharged the obligation in excess of what could justly be claimed from him.

'Since the right of contribution depends upon the satisfaction, by one of several obligees, of an obligation which would otherwise fall upon all, It is essential that they be equally bound to one principal * * *.' (Italics supplied.) 2 Beach, Modern Equity Jurisprudence, §§ 822, 824.

'* * * It is a right which accrues to one or more individuals (out of the whole number bound) who pay the debt For which they are all bound.' (Italics supplied.) 2 Story, Equity Jurisprudence (14th ed.) § 648.

The old cases point out the need for a legally enforceable right on the part of the injured person against defendant in the contribution action, since, in effect, it was this right that the paying party acquired, and, in absence of such a right and its counter liability, contribution would not lie. As was said by Lord Redesdale in Stirling v. Forrester, 3 Bligh 575, 590, in discussing the duty of Contribution:

'* * * If several persons are indebted, and one makes the payment, the creditor is bound in conscience, if not by contract, to give to the party paying the debt all his remedies against the other debtors. The cases of adverage in equity rest upon the same principle. It would be against equity for the creditor to exact or receive payment from one, and to permit, or by his conduct to cause, the other debtors to be exempt from payment. He is bound, seldom by contract, but always in conscience, as far as he is able, to put the party paying the debt upon the same footing with those who are equally bound.' (This is quoted with approval in 5 Beach, Modern Equity Jurisprudence, § 823.)

It was the benefit of being relieved of an obligation on which equity based the duty to contribute.

'* * * It is compensation given in equity for removing the common burden, * * *.' 1 Puterbaugh, Chancery Pleading and Practice (7th ed.) § 496.

'The claim certainly has its foundation in the clearest principles of natural justice; for as all are Equally bound and are Equally relieved, it seems but just that in such a case all should contribute in proportion towards a benefit obtained by all, * * *.' (Italics supplied.) 2 Story, Equity Jurisprudence (14th ed.) § 667.

In Minnesota the extension of the action of contribution to allow recovery among joint tortfeasors is not based on any state which might be interpreted as changing the basis of the action of contribution, ⁴ but rather it resulted from a judicial extension of the common-law doctrine of contribution. Ankeny v. Moffett 37 Minn. 109, 33 N.W. 320; Kemerer v. State Farm Mutual Auto Ins. Co., 201 Minn. 239, 276 N.W. 228, 114 A.L.R. 173. Thus, the common-law principles and elements of this action are to be followed and applied. Modern authority has uniformly expressed the opinion that the elements of the common-law action of contribution still apply in the case of contribution among joint tortfeasors.

'* * * the principle of equity on which the right of contribution is founded can apply only in cases where the situations of the parties are equal, for equality among persons whose situations are not equal is not equitable. (Citing cases.) Within the meaning of this rule, the situations of the parties are equal when the parties are under a common burden or liability.' Citing Waldref v. Dow, 172 Minn. 52, 214 N.W. 767; 18 C.J.S., Contribution, § 3.

It is consistently emphasized that the mere fact that the parties are joint tortfeasors does not give rise to the obligation to contribute. In 13 Am.Jur., Contribution, § 51, we find the rule concisely stated:

'In order for a right of contribution to accrue between tort-feasors, they must be cotort-feasors or joint wrongdoers in the sense that their tort, or torts, imposed a common liability upon them to the party injured. (Citing cases.) A person compelled to discharge a liability for a tort cannot recover contribution from another whose participation in the tort gave the injured party no cause of action against him. (Citing cases.)' (Italics supplied.)

Section 52 states:

'The universally recognized requirement that the parties must, in order for a right to contribution to arise, be subjected to a common liability does not mean merely that there must be unity or concert of action between the tort-feasors. (Citing case.) * * *

'* * * It is only where concurring negligence actually subjects the tort-feasors to a common liability, which it does not always or necessarily do, that...