American Motorists Ins. Co. v. Vigen

• Decision Date: 07 August 1942
• Docket Number: No. 33053.,No. 33190.,33053.,33190.
• Citation: 5 N.W.2d 397,213 Minn. 120
• Parties: AMERICAN MOTORISTS INS. CO. v. VIGEN. GENERAL CASUALTY CO. OF WISCONSIN v. GOLOB.
• Court: Minnesota Supreme Court

5 N.W.2d 397

213 Minn. 120

AMERICAN MOTORISTS INS. CO. v. VIGEN.

GENERAL CASUALTY CO. OF WISCONSIN v. GOLOB.

No. 33053.

No. 33190.

Supreme Court of Minnesota.

August 7, 1942.

Case No. 33053:

Appeal from District Court, Beltrami County; Graham M. Torrance, Judge.

Case No. 33190:

Appeal from District Court, St. Louis County; C. R. Magney, Judge.

Suits for contribution by the American Motorists Insurance Company against Tom Vigen, wherein Ernest S. Vigen, administrator of the estate of Tom Vigen, deceased, was substituted as appellant, and by the General Casualty Company of Wisconsin against John Golob. From orders overruling their demurrers and denying their motions for judgment notwithstanding the verdict or a new trial, defendants appeal.

Orders reversed.

Smith & Nolan, of Bemidji, for appellant Vigen.

Stone, Manthey, Carey & MacDougall, of Virginia, for appellant Golob.

Forbes & Olson, of Bemidji, for respondent American Motorists Ins. Co.

Johnson & Hultstrand, of Hibbing, for respondent General Casualty Co.

LORING, Justice.

These two cases present the question whether an unsuccessful defendant in a personal injury suit who is sued jointly with another defendant in whose favor a verdict was found and judgment entered is entitled to retry the issue of the successful defendant's liability to the original plaintiff and, if successful in establishing such liability, to recover contribution from the successful defendant.

It is the contention here of the insurers of the unsuccessful defendants that they may relitigate the liability of the successful defendants to the original injured plaintiffs and thus establish a common liability, notwithstanding the fact that it has been finally adjudicated that there is not and never was any liability on the part of the successful defendants to the injured plaintiffs.

The successful defendants, who are appellants here, assert that the adjudication in their favor in the original actions is conclusive of their nonliability to the original plaintiffs, and that since there is not and never was any liability on their part to such plaintiffs the essential element to justify contribution is lacking. In support of their position they cite National Bondholders Corp. v. Seaboard Citizens Nat. Bank, 4 Cir., 110 F. 2d 138, 144, where the court said: "Ordinarily, parties to a judgment are not bound by it in a subsequent controversy between each other unless they were adversary parties in the original action. City Bank of Wheeling v. Rhodehamel, 4 Cir., 223 F. 979; Freeman on Judgments, 5 Ed. vol. 1 §§ 422-425, but there are exceptions to the rule, as where co-parties do in fact occupy the attitude of adversaries, e. g., Atchison, T. & S. F. R. Co. v. A. B. C. Fireproof Warehouse Co., 8 Cir., 82 F.2d 505; or where some finding of fact is made in the first suit which is an essential element in a claim or action subsequently brought by one against the other. As said in Freeman on Judgments, § 425, `insofar as their rights or obligations inter se are dependent on their rights or obligations toward their common adversary, the judgment adjudicating the latter is conclusive upon codefendants in subsequent litigation between them'. Thus it was held in United States Fidelity & Guaranty Co. v. Haggart, 8 Cir., 163 F. 801 (Sanborn, Van Devanter and Munger), that a judgment recovered by the United States against a marshal and the surety on his bond, on account of defalcation by the marshal's deputies, is conclusive of the existence of the defalcations and of the amount thereof in a subsequent action brought by the marshal against the surety on another bond, whereby the Surety Company bound itself to indemnify the marshal for every act done or neglected to be done by the deputies. See, also, Corcoran v. Chesapeake & Ohio Canal Co., 94 U.S. 741, 24 L.Ed. 190; The No. 34, 2 Cir., 25 F.2d 602, 606; Kent's Adm'r v. Kent's Adm'r, 82 Va. 205; Ellis v. Cole, 105 App.Div. 48, 94 N.Y.S. 1031." (Italics supplied.)

This rule is supported by Hobbs v. Hurley, 117 Me. 449, 453, 104 A. 815, 817, an action for contribution against alleged joint tort-feasors where two of the four defendants were exonerated in the original action, and contribution was sought by one unsuccessful defendant against the other, the latter making the defense that each of the four original defendants should contribute one-fourth. The court said: "In the first place, all four of these persons were joined as defendants in the former suit, and their liability or nonliability was there determined. Judgment was rendered against Hobbs and Hurley while it was held that the action should not be maintained against Gardner and Herrick. That judgment still stands unreversed and is not open to collateral attack unless it was obtained by fraud or unless want of jurisdiction appears on the face of the record. Toothaker v. Greer, 92 Me. 546, 43 A. 498; Winslow v. Troy, 97 Me. 130, 53 A. 1008. The rights of the parties were fixed by that judgment, and it constitutes the impregnable basis of this suit. Contribution must be of one-half the amount."

See, also, Town of Flagstaff v. Walsh, 9 Cir., 9 F.2d 590, 592.

But the unsuccessful defendants here contend that this court is committed to their position.

This court has held that a judgment against both defendants in the original action is not res judicata as between them in a subsequent action for contribution. Kemerer v. State Farm Mut. Auto Ins. Co., 201 Minn. 239, 276 N.W. 228, 114 A. L.R. 173. The defendant who paid no part of the judgment may show that the tortious conduct of the other was willful and that consequently he is not liable to such defendant for contribution.

Since the payment by a plaintiff of more than his share of a common liability is the basis of an action for contribution, the lack of such common liability to the injured person on the part of the parties to the contribution action would logically seem to preclude a right to contribution. "The thing that gives rise to the liability [for contribution] * * * is that both parties were subject originally to a common liability, and one has taken more than his just share of the burden." Duluth, M. & N. Ry. Co. v. McCarthy, 183 Minn. 414, 418, 236 N. W. 766, 768.

It must be conceded that the judgment in favor of the successful defendant and against the injured plaintiff as between them is conclusive that there is not and never was any liability whatever on the part of the successful defendant to the injured party. No recovery could ever have been had by the injured party against him. Hence it would seem to follow that there could never have been a common liability. That is res judicata between the injured plaintiff and the successful defendant. In cases where the judgment is against both or all defendants, it is likewise res judicata between the original plaintiff and such defendants. Is it not, then, an adjudication of such an essential element of the suit for contribution as to preclude recovery in the cases at bar?

Ankeny v. Moffett, 37 Minn. 109, 33 N.W. 320, held that contribution is available between joint tort-feasors, absent intentional wrong or conscious illegal act on the part of the one seeking such relief. Kemerer v. State Farm Mut. Auto Ins. Co., 211 Minn. 249, 300 N.W. 793.

Mason St.1927, § 9410, has made no change in the substantive law of contribution. It has merely supplied a summary method of procedure. Kemerer v. State Farm Mut. Auto Ins. Co., 201 Minn. 239, 276 N.W. 228, 114 A.L.R. 173.

Where, as in Duluth, M. & N. Ry. Co. v. McCarthy, 183 Minn. 414, 236 N.W. 766, one of two defendants makes a provident settlement before trial, the question of common liability is still open and may be determined in the action for contribution.

In Hardware Mut. Cas. Co. v. Anderson, 191 Minn. 158, 253 N.W. 374, where, as in the cases now before us, there was a verdict against one defendant and in favor of the other, the judgment was held not res judicata between the defendants, but the question of whether the case presented the question of common liability prerequisite to contribution was expressly not decided for the reason that it had not been presented below.

We are cited to Merrill v. St. Paul City Ry. Co., 170 Minn. 332, 334, 212 N.W. 533, as conclusive on the question now before us. In that case there was a directed verdict in favor of one of two defendants and a jury verdict against the other, who on appeal sought to review the propriety of the directed verdict upon the theory that, if erroneous, it took from him his right to contribution. This court said: "This contention rests on the assertion that the directed verdict is an adjudication of the question of negligence between the codefendants."

The court discussed only the problem of res judicata and came to the conclusion that a judgment resting on the directed verdict would not be res judicata in an action for contribution, basing its decision upon Bakula v. Schwab, 167 Wis. 546, 168 N.W. 378. The opinion did not discuss the effect of the directed verdict on the basic element of an action for contribution.

In the Bakula case a verdict was erroneously directed against one of two defendants...