Armstrong Co. v. Clarion Co.

• Decision Date: 03 January 1870
• Citation: 66 Pa. 218
• Parties: Armstrong County <I>versus</I> Clarion County.
• Court: Pennsylvania Supreme Court

66 Pa. 218

Armstrong County versus Clarion County.

Supreme Court of Pennsylvania.

October 21, 1870.

January 3, 1870.

October 21st 1870.

Before THOMPSON, C. J., READ, AGNEW, SHARSWOOD and WILLIAMS, JJ.

Error to the Court of Common Pleas of Clarion county: No. 88, to October and November Term 1870 F. Mechling, G. W. Lathey and D. Barclay, for plaintiff in error.—Contribution does not spring from contract but general principles of justice: 1 Story's Eq. Jur. § 463 note; 1 Pars. on Cont. 31. Those who are bound to repair must answer for neglect: Erie v. Schwingle, 10 Harris 388. Contribution may be recovered where the act is not clearly illegal and was done bonâ fide: 1 Pars. on Cont. 37 note 10; Adamson v. Jarvis, 4 Bing. 66; Humphrey v. Armstrong, 6 P. F. Smith 204; Worty v. Batte, 2 C. & P. 417; Horbach v. Elder, 6 Harris 33.

W. L. Corbett, for defendant in error.—Contribution cannot be recovered by one tort-feasor from another: Merriweather v. Nixon, 8 Term R. 186; Betts v. Gibbins, 2 Ad. & Ellis 74; N. Penna. Railroad v. Mahoney, 7 P. F. Smith 189; Beck v. Ellis, 2 Johns. Ch. R. 336.

The opinion of the court was delivered, January 3d 1870, by READ, J.

The bridge across Red Bank creek, between the counties of Armstrong and Clarion, at the place known as the Rockport Mills, was a county bridge, maintained and kept in repair at the joint and equal charge of both counties. Whilst John A. Humphreys was crossing the bridge it fell and he was severely injured; he brought suit for damages against the county of Armstrong; and on the trial, under the charge of the court, there was a verdict for defendant. This was reversed on writ of error (6 P. F. Smith 204); and upon a second trial there was a verdict for the plaintiff for $1100 damages, on which judgment was entered. This judgment, with interest and costs, was paid by Armstrong county, and the present suit is to recover contribution from Clarion county. On the trial the learned judge nonsuited the plaintiff on the ground that one of two joint wrongdoers cannot have contribution from the other.

The commissioners of the two counties had examined the bridge in the summer and ordered some repairs which were made. There can be little doubt that morally Clarion county was bound to pay one-half of the sum recovered from and paid by Armstrong county; and the question is, does not the law make the moral obligation a legal one? Merriweather v. Nixon, 8 Term R. 186, the leading case on the subject, was of a joint injury to real estate, and for the joint conversion of personal property, being machinery in a mill. In Colburn v. Patmore, 1 Cr. M. & R. 73, the proprietor of a newspaper who, for a libel published in it, was subjected to a criminal information, convicted and fined, sought to recover from his editor who was the author of the libel, the expenses which he had incurred by his misfeasance; Lord Lyndhurst said: "I know of no case in which a person who has committed an act declared by the law to be criminal, has been permitted to recover compensation against a person who has acted jointly with him in the commission of the crime."

So in Arnold v. Clifford, 2 Sumner 238, it was held, a promise to indemnify the publisher of a libel is void. "No one," said Judge Story, "ever imagined that a promise to pay for the poisoning of another was capable of being enforced in a court of justice."

In Miller v. Fenton, 11 Paige 18, the wrongdoers were two of the officers of a bank, who had fraudulently abstracted its funds, and of course there could be no contribution between criminals. In the case of The Attorney-General v. Wilson, 4 Jurist 1174, cited in the above case by the chancellor, and also reported in 1 Craig & Phillips 1, where it was contended that all the persons charged with the breach of trust should be made parties, Lord Cottenham said: "In cases of this kind where the liability arises from the wrongful act of the parties, each is liable for all the consequences, and there is no contribution between them, and each case is distinct, depending upon the evidence against each party. It is therefore not necessary to make all parties who may more or less have joined in the act complained of." Seddon v. Connell, 10 Simons 81, is to the same effect.

In Story on Partnership, § 220, after speaking of the general rule that there is no contribution between joint wrongdoers, the author says: "But the rule is to be understood according to its true sense and meaning, which is, where the tort is a known meditated wrong, and not where the party is acting under the supposition of the entire innocence and propriety of the act, and the tort is merely one by construction, or inference of law. In the latter case, although not in the former, there may be and properly is, a...