Brown Hotel Co. v. Pittsburgh Fuel Co.

• Decision Date: 06 December 1949
• Citation: 311 Ky. 396
• Parties: Brown Hotel Co. et al. v. Pittsburgh Fuel Co.
• Court: United States State Supreme Court — District of Kentucky

311 Ky. 396

Brown Hotel Co. et al. v. Pittsburgh Fuel Co.

Court of Appeals of Kentucky. Common Pleas Branch, Third Division.

June 10, 1949.

Rehearing denied December 6, 1949.

1. Indemnity. — Joint tort-feasor who is compelled to pay damages for negligent or tortious act of another is not entitled to indemnity from the latter where joint tort-feasors are in pari delicto.

2. Indemnity. — Statute authorizing contribution among tort-feasors where wrong reflects no moral turpitude allows the right of indemnity where the person seeking it and the person from whom it is sought are not in pari delicto, as where party who is compelled to pay damages is less culpable than other wrongdoer, although both are equally liable to person injured. KRS 412.030.

3. Indemnity. — Where one of two parties does an act or creates a hazard and the other, while not concurrently joining in the act, is nevertheless thereby exposed to liability to the person injured, or is only technically or constructively at fault, as from failure to perform some legal duty of inspection and remedying the hazard, the party who is the active wrongdoer or primarily negligent can be compelled to make good to other party any loss he sustains.

4. Trespass. — Statute which authorizes a jury to assess joint or several damages against defendants, in an action of trespass applies to trespass upon and injury to body of a person. KRS 454.040.

5. Contribution. — One seeking contribution under statute must show that injuries for which he has paid damages are proximately caused by combined negligence of himself and defendant against whom right is claimed and that he has satisfied a judgment or has made reasonable payment in a bona fide compromise. KRS 412.030.

6. Contribution. — Under statute authorizing contribution among wrongdoers where wrong is a mere act of negligence involving no moral turpitude, there may be contribution among parties in pari delicto; "contribution" being pro tanto indemnity. KRS 412.030.

7. Indemnity. — Under common law, there may be complete indemnity where one party's liability is secondary because it arises from negligence of other party and would not have arisen but for it.

8. Judgment. — An essential element of res judicata is identity of issue.

9. Judgment. — Where issue in action by pedestrian for injuries sustained in falling through a coal hole located in a public alley against a coal company whose delivery man improperly replaced lid on hole after delivery of coal, and against hotel which maintained the coal hole, was whether either defendant was negligent, and issue in action by hotel against coal company for indemnity was whether negligence of coal company was primary cause of pedestrian's injuries, "identity of issue "was lacking and judgment in former action was not res judicata in indemnity action. KRS 412.030, 454.040.

10. Judgment. — A judgment against codefendants is not conclusive as between themselves with respect to their rights and liabilities toward each other unless an issue is made between them or parties in second action were adversary parties in first action.

11. Pleading. — In a tort action against codefendants, neither defendant is permitted to file a cross-petition against the other charging him to have been negligent.

12. Indemnity. — Judgment in action by pedestrian for injuries sustained in falling through a coal hole located in a public alley against coal company whose delivery man improperly replaced lid over coal hole after delivery of coal, and against hotel which maintained coal hole, was not res judicata in action by hotel against coal company for indemnity, although verdict assessed damages in equal amount against coal and hotel companies, and hotel could recover indemnity where coal company's negligence was primary and efficient cause of defendant's injuries. KRS 412.030, 454.040.

Appeal from Jefferson Circuit Court.

Robert F. Vaughn for appellants.

Robert L. Page and Albert F. Reutlinger for appellee.

Before William H. Field, Judge.

STANLEY, COMMISSIONER.

Reversing.

This is a suit for indemnity. An employee of the appellee, Pittsburgh Fuel Company, left insecure the lid of a manhole into which he had unloaded coal, and a pedestrian was injured when it turned with him. A judgment for $5,277 for damages was rendered against the fuel company and the Brown Hotel Company. The verdict specified each should pay an equal part. The fuel company paid its part of the judgment without appeal. We affirmed the judgment for the other half against the hotel company. Brown Hotel Co. v. Sizemore, 303 Ky. 431, 197 S.W. 2d 911. When the Liberty Mutual Insurance Company, its insurer, had satisfied the judgment, the hotel company assigned to it all its claims, demands and causes of action. Both companies joined in this suit against the fuel company asserting the right to recover the sums paid in satisfaction of the judgment and expenses incurred in defending the action. In the damage suit the fuel company had denied its negligence and charged sole negligence on the part of the hotel company as being responsible for the pedestrian's injuries. Prior to the trial the hotel company had notified the fuel company that it would hold it liable in the event of a recovery of judgment.

A demurrer to the petition being overruled, the defendant filed an answer in which it pleaded that Sizemore's petition had charged negligence on the part of both the coal company and the hotel company; that the hotel company had pleaded that plaintiff's injuries had been caused by the sole negligence of the fuel company; that the case has been submitted to the jury on instructions which permitted a verdict against either or both defendants in that action and that the jury had found both to be negligent and it had been finally so adjudged. That judgment was pleaded in bar of the present suit for indemnity. The demurrer to the answer was carried back to the petition and sustained and the petition was dismissed. This appeal follows.

The question is one of res judicata in a subsequent action between the codefendants in which indemnity is sought by one against the other.

The general common law rule that a joint tort-feasor who is compelled to pay damages for the negligent or tortious act of another is not entitled to indemnity from the latter has become subject to so many exceptions and limitations — resting upon reasons at least as forceful as those which support the rule itself — the rule has become so narrow that it can hardly with propriety now be called the general rule. 13 Am. Jur., Contribution, sec. 39. The general rule has become the specific rule only where joint tort-feasors were in pari delicto — equal fault. Other than that, the so-called exceptions have become rules themselves. An Act of 1926, now Kentucky Revised Statutes 412.030, authorizing contribution among tort-feasors where the wrong reflects no moral turpitude, abrogated the so-called general rule but made no change in the exception which allows the right of indemnity where the person seeking it and the person from whom it is sought are not in pari delicto, as where the party who was compelled to pay the damages was less culpable than the other wrongdoer, although both were equally liable to the person injured. Louisville Ry. Co. v. Louisville Taxicab & Transfer Co., 256 Ky. 827, 77 S.W. 2d 36. Where one of two parties does an act or creates a hazard and the other, while not concurrently joining in the act, is, nevertheless, thereby exposed to liability to the person injured, or was only technically or constructively at fault, as from the failure to perform some legal duty of inspection and remedying the hazard, the party who was the active wrongdoer or primarily negligent can be compelled to make good to the other any loss he sustained. Blocker v. City of Owensboro, 129 Ky. 75, 110 S.W. 369; City of Georgetown v. Groff, 136 Ky. 662, 124 S.W. 888; Robertson v. City of Paducah, 146 Ky. 188, 142 S.W. 370, 40 L.R.A., N.S., 1153; Owensboro City Ry. Co. v. Louisville, H. & St. L. Ry. Co., 165 Ky. 683, 178 S.W. 1043; Cumberland Tel. & Tel. Co. v. Mayfield Water & Light Co., 166 Ky. 429, 179 S.W. 388; United States Casualty Co. v. Cincinnati, N.O. & T.P. Ry. Co., 218 Ky. 455, 291 S.W. 709; Louisville & N.R. Co. v. Southern Ry. Co., 237 Ky, 618, 36 S.W. 2d 20. Two additional cases are so pertinent they may be noted specially. A railroad brakeman suffered injury by a concealed defect in a brake staff of a car which had been built by the Pullman Company. The suit of the injured man in the United States court had resulted in a directed verdict for the Pullman Company, and a judgment on a verdict against the railroad company for a large sum was rendered. The railroad company subsequently sued to recover the amount paid on the judgment from the Pullman Company. We found the evidence presented on the trial to show that the manufacturer was negligent in the manner in which it had welded the brake staff and the railroad company was negligent in failing to discover the defect or the prior negligence of the Pullman Company. The judgment against the railroad company was held conclusive of its negligence. But its negligence was secondary, and that of the manufacturer was primary since it created the danger, and indemnity was authorized. Pullman Co. v. Cincinnati, N.O. & T.P. Ry. Co., 147 Ky. 498, 144 S.W. 385. The rule was also applied where a brakeman was knocked from a car by a sagging telephone cable extending over the railroad. The railroad company alone was sued, and a judgment against it was paid. In its suit against the telephone company for indemnity we held it could recover over against the telephone company the damages which it had been compelled to pay to the brakeman because the parties were not in pari delicto, the telephone company being primarily responsible. Middlesboro Home Tel. Co. v. Louisville & N.R. Co., 214 Ky. 822, 284 S.W. 104.

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