Chamberlain v. McCleary

• Decision Date: 16 April 1963
• Docket Number: Civ. A. No. 3981.
• Citation: 217 F. Supp. 591
• Parties: Marion CHAMBERLAIN v. Eva Douglas McCLEARY and Alfred McCleary v. Howard W. CHAMBERLAIN.
• Court: U.S. District Court — Eastern District of Tennessee

217 F. Supp. 591

Marion CHAMBERLAIN v. Eva Douglas McCLEARY and Alfred McCleary v. Howard W. CHAMBERLAIN.

Civ. A. No. 3981.

United States District Court E. D. Tennessee, S. D.

April 16, 1963.

Folts, Bishop, Thomas, Leitner & Mann, Chattanooga, Tenn., H. Thomas Brown, Cincinnati, Ohio, for plaintiff.

Strang, Fletcher, Carriger & Walker, Chattanooga, Tenn., for defendant.

Strang, Fletcher, Carriger & Walker, Chattanooga, Tenn., for third-party plaintiff.

Folts, Bishop, Thomas, Leitner & Mann, Chattanooga, Tenn., for third-party defendant.

FRANK W. WILSON, District Judge.

This lawsuit arose from a collision between two automobiles. One of the automobiles was owned and operated by Howard W. Chamberlain, whose wife, Marion Chamberlain, was riding with him as a passenger. The other automobile was operated by Eva Douglas McCleary, and owned by her husband, Alfred McCleary.

The principal suit was brought by Marion Chamberlain against the McClearys. The McClearys in turn filed a third-party suit against Howard W. Chamberlain, seeking indemnity upon the theory that Mr. Chamberlain was guilty of active negligence while Mrs. McCleary was guilty of only passive negligence, if any; or, in the alternate, seeking contribution upon the theory that Mr. Chamberlain was a joint tortfeasor with Mrs. McCleary. The case is now before the Court upon a motion by Mr. Chamberlain to vacate the Order permitting the filing of the McClearys' third-party suit, and to dismiss that suit.

Mr. Chamberlain appears not to challenge the general availability of indemnity or contribution between tortfeasors under the law of Tennessee. In Huggins v. Graves, D.C., 210 F.Supp. 98, this Court recently held that the Tennessee Supreme Court had recognized the general availability of contribution in Davis v. Broad Street Garage (1950) 191 Tenn. 320, 232 S.W.2d 355, 357,¹ and the availability of indemnity of the kind sought here in the case of Cohen v. Noel, (1933) 165 Tenn. 600, 56 S.W.2d 744. Nor does Mr. Chamberlain challenge the propriety of permitting a claim for contribution or indemnity by third-party suit before judgment has been rendered against and paid by the parties seeking contribution or indemnity. This practice was approved in the Huggins case, and the Court remains of the opinion that it is proper under Rule 14 of the Federal Rules of Civil Procedure, 28 U.S.C.A.

Mr. Chamberlain bases his motion upon the fact that the original plaintiff, Marion Chamberlain, is his wife. He argues that his wife could not sue him directly for a personal tort under the law of Tennessee, and that, likewise under the law of Tennessee, one cannot "do indirectly what a party could not do directly."

It is true that Tennessee law recognizes the common law marital immunity which ordinarily precludes tort actions between husband and wife for personal injuries. Prince v. Prince, 205 Tenn., 451, 454, 326 S.W.2d 908, 909. It is true also that cases may be found which state in substance that, with regard to domestic immunities, one cannot do indirectly that which cannot be done directly. See, e. g., Mahaffey v. Mahaffey, 15 Tenn.App. 570; Raines v. Mercer, 165 Tenn. 415, 55 S.W.2d 263; Jenkins v. General Cab Co. of Nashville, Inc., 175 Tenn. 409, 135 S.W.2d 448; Graham v. Miller, 182 Tenn. 434, 187 S.W.2d 622, 162 A.L.R. 571; Ownby v. Kleyhammer, 194 Tenn. 109, 250 S.W. 2d 37. Cf. Fagg v. Benton Motor Co., 193 Tenn. 562, 246 S.W.2d 978. But it is questionable whether the result sought by Mr. Chamberlain in the present case is required by, or should be granted upon the authority of so general a principle. As Benjamin Cardozo once stated in addressing himself to a somewhat similar problem:

"No doubt one can gather pronouncements from treatise or decision which, taken from their setting, give color of support for an exemption even wider. They have no such effect when related to context and occasion. Few formulas are meant to serve as universals. A progeny deformed or vicious may be known as illegitimate. Here as elsewhere we are to be on our guard against the perils that are latent in `a jurisprudence of conceptions.'" Schubert v. August Schubert Wagon Co., 249 N. Y. 253, 164 N.E. 42, 64 A.L.R. 293.

What is required, then, is that the principle relied upon by Mr. Chamberlain be related to context and occasion by close scrutiny of the cases cited in its support.

The case upon which Mr. Chamberlain places his principal reliance is Graham v. Miller, 182 Tenn. 434, 187 S.W.2d 622, 162 A.L.R. 571. That case involved a suit on behalf of an unemancipated minor child against the employer of the child's father for a personal injury negligently inflicted upon the child by the father-employee within the scope of his employment. It appeared that the employer had negligently contributed to the accident, and that he was a joint tortfeasor with the father-employee. The Court stated that the child could not recover from his father's joint tortfeasor because the latter, if held liable, might eventually seek contribution from the father-employee, and thus effectively circumvent the father's immunity from liability to his unemancipated minor child.

The Graham case may be said to support the general proposition that one cannot do indirectly that which cannot be done directly. It does not, however, support the position taken by Mr. Chamberlain in the present case. Mr. Chamberlain contends that the McClearys' third-party suit should be barred, lest the McClearys recover over from him for any liability adjudged against them in favor of Mrs. Chamberlain. But the Graham case involved no denial of such a recovery over. Upon the contrary, the Graham case expressly stated that a recovery over would indeed be available in such a situation, and made this statement a basis of its holding that the suit of the original plaintiff should be barred. In other words, applying the rationale of the Graham case to the present case would bar not the third-party suit by the McClearys against Mr. Chamberlain, but rather the original suit by Mrs. Chamberlain against the McClearys, assuming of course that the accident was caused by concurring negligence on the part of Mrs. McCleary and Mr. Chamberlain.

It is believed, however, that the rule of the Graham case fortunately no longer represents the law of Tennessee. As between an innocent and injured plaintiff and the party causing the injury by culpable conduct, that rule favored the latter by extending to him the purely personal domestic immunity of his co-tortfeasor. Significantly, the trend of the law today is toward limiting domestic immunities, rather than toward expanding them. Prosser, Torts, sec. 101; Harper & James, Torts, 643 et seq. This trend is clearly discernible in Tennessee. See Glover v. Glover, 44 Tenn.App. 712, 319 S.W.2d 238; Brown v. Selby, 206 Tenn. 71, 332 S.W.2d 166; Herrell v. Haney, 207 Tenn. 532, 341 S.W.2d 574; Logan v. Reaves, 209 Tenn. 631, 354 S.W.2d 789. But see Gordon v. Pollard, 207 Tenn. 45, 336 S.W. 2d 25. In addition, a more reasonable and equitable solution to the problem presented in the Graham case appears to have become appropriate in Tennessee. As stated in Note, 27 Tenn.L.Rev. 422, 427:

"A more just solution of this problem would be to allow the plaintiff to recover against the defendant, and bar the latter's right to contribution. Otherwise the plaintiff is left without a remedy, while the defendant is relieved of liability though * * * he has been actually negligent. The solution here advocated could easily have been reached if the court had applied the almost uniform rule that there can be no contribution between joint tortfeasors unless there exists a common liability between them. As this rule apparently has been followed in Tennessee in other cases, the Graham rationale does not appear to be based upon a firm foundation."

The cases applying the rule against contribution in the absence of a common liability were decided after the Graham case. Vaughn v. Gill, Tenn., 264 S.W.2d 805; Davis v. Broad Street Garage, 191 Tenn. 320, 232 S.W.2d 355. See also United States Casualty Co. v. Standard Acc. Ins. Co., 175 Tenn. 559, 136 S.W.2d 504, 126 A.L.R. 876.² The principle of these cases is squarely in accord with the specific rule elsewhere that contribution is not available between tortfeasors when there is no common liability between them because one of the tortfeasors is the beneficiary of a domestic immunity. See Annot., 19 A.L.R.2d 1003; 1 Harper & James, Torts, 718; 13 Am. Jur., Contribution, secs. 51 and 52. For these reasons the Court is of the opinion that the basis for the decision in the Graham case — the assumed potential availability of contribution against a party immune from liability to the original plaintiff — no longer exists, and that if a domestic immunity is to be protected in this situation, the proper method is by allowing the original suit but denying the defendant the right to contribution against the immune party.

The Court's conclusion in this regard is not altered by the fact that the Graham case was cited with apparent approval in the recent case of Morris v. State Farm Mutual Automobile Insurance Company, Tenn.App., 360 S.W.2d 776.

The factual situation from which the Morris litigation arose was somewhat similar to that from which the present case arose. Mrs. Morris was riding as a passenger in an automobile driven by her husband, and was injured in a collision with a bus in Arkansas. She sued the bus company in federal court for her personal injuries, and the bus company filed a third-party suit against Mr. Morris, seeking exoneration or contribution for joint negligence, under Arkansas statutes providing for the same. Mr. Morris called upon his insurer to defend the third-party suit, but the insurer declined to defend. Mr. Morris thereupon employed his own counsel, and was eventually successful when the bus company dismissed the third-party suit upon settling the claim of Mrs....