Consolidated Coach Corporation v. Burge

• Citation: 245 Ky. 631
• Parties: Consolidated Coach Corporation v. Burge.
• Decision Date: 01 November 1932
• Court: United States State Supreme Court (Kentucky)

245 Ky. 631

Consolidated Coach Corporation v. Burge.

Court of Appeals of Kentucky.

Decided November 1, 1932.

1. Contribution. — Upon happening of accident, coach corporation had inchoate right to contribution against truck owner on account of injury to passengers caused by concurrent negligence of parties' servants (Ky. Stats., sec. 484a).

2. Contribution. — Coach corporation's inchoate right to contribution against truck owner on account of injuries to passengers due to concurrent negligence of parties' servants did not ripen until payment of compensation to passengers (Ky. Stats., sec. 484a).

3. Contribution. — No right to contribution by one joint tort-feasor against another existed at common law.

4. Contribution. — Statutory right to contribution exists between merely negligent joint tort-feasors (Ky. Stats., sec. 484a).

5. Contribution. — Contribution cannot be enforced by one tort-feasor against another, unless concurrent negligence of each was a proximate cause of injury to third person (Ky. Stats., sec. 484a).

6. Pleading. — Petition which alleges facts giving rise to duty alleged to have been breached may allege generally that defendant acted negligently and carelessly without alleging specific facts relied on to show negligence.

7. Contribution. — General rule that petition may allege negligence in general terms where it alleges facts giving rise to duty alleged

to have been violated applies to petition by joint tort-feasor against another for contribution (Ky. Stats., sec. 484a).

8. Contribution. — Rendition of judgment against one joint tort-feasor and its satisfaction by him are not conditions precedent to right of contribution against another (Ky. Stats., sec. 484).

9. Contribution. — Prima facie right to contribution against another joint tort-feasor exists upon compromise and settlement in good faith for reasonable amount with injured party by one of them (Ky. Stats., sec. 484).

10. Jury. — Rule that compromise and settlement for reasonable amount in good faith with injured party by one joint tort-feasor establishes prima facie right to contribution does not deprive second joint tort-feasor of jury trial, either as to liability or amount thereof (Ky. Stats., sec. 484).

Such joint tort-feasor is not deprived of jury trial because he may show, if possible, that he was not negligent or that, if negligent, such negligence was not a proximate cause of injury complained of, or that compensation paid was not reasonable, nor made in good faith.

11. Contribution. — Burden is on joint tort-feasor claiming contribution to show that concurrent negligence of each party was a proximate cause of injury to third person (Ky. Stats., sec. 484).

12. Contribution. — Measure of contribution by one joint tort-feasor to another is one-half of such reasonable amount as was paid to injured party in settlement of his claim in good faith for personal injuries, lost time, medical and like bills (Ky. Stats., sec. 484).

13. Contribution. — Burden rests upon joint tort-feasor against whom contribution is sought to show that amount paid in settlement of claim of third party was excessive or not made in good faith (Ky. Stats., sec. 484).

Appeal from Shelby Circuit Court.

R.W. KEENON and TODD & BEARD for appellant.

BARRICKMAN & KALTENBACHER and ATTKISSON & ATTKISSON for appellee.

OPINION OF THE COURT BY JUDGE RICHARDSON.

Reversing.

The trial court overruled a demurrer to the fourth paragraph of the answer of Burge and ordered it carried back to the petition and sustained. The Consolidated Coach Corporation elected to stand by its petition, and declined to plead further. The court dismissed its petition; hence this appeal.

Warren Burge was the owner of a truck which was being operated by his employee on the Lexington-Louisville highway. It was standing on the right side of the highway opposite a point where the Buzzard's Roost pike intersected the Louisville-Lexington highway. A bus of the Consolidated Coach Corporation was going west on the highway, when the operator observed Burge's truck. He sounded a warning, and, in order to avoid a collision with the truck, the driver of the bus so operated it that it went off the highway, resulting in the injury of a number of passengers on the bus. Mrs. W.T. Wright, Anna Spaulding, Edward Schlumpf, and Mrs. Denhardt sustained injuries from the bus leaving the highway. Mrs. Wright filed an action in the Shelby circuit court against the owner of the bus, the Consolidated Coach Corporation. She recovered $7,500 damages. An appeal was taken to this court; the judgment was reversed, and cause remanded for a new trial. After the reversal, she and the Consolidated Coach Corporation compromised her claim, it paying her $3,850. Compromises of the claims for damage against it by the other injured passengers named above were effected; it paying to Anna Spaulding $250, to Schlumpf $200, and to Mrs. Denhardt $750. Prior to the trial in the circuit court of Mrs. Wright's action against the Consolidated Coach Corporation, it filed an action against Burge to recover of him damage for injury to the bus, alleged to have been sustained by the negligent operation and management of the truck at the time these passengers were injured. After the compromises of the claims of the passengers, the Consolidated Coach Corporation filed in an action against Burge for damage to its bus an amended petition, wherein it alleged that, by the negligence of the driver of the truck the running off the highway of its bus resulted, which caused it to pay the damages claimed by the injured passengers. A motion was made to require it to elect whether it would prosecute its cause of action set out in the original or in its amended petition. A demurrer was also filed to the amended petition, when it was dismissed without prejudice. The cause of action set up in its original petition was tried by a jury, which resulted in a verdict adverse to it. The present action was filed to require Burge to contribute a portion of the amounts paid by the Consolidated Coach Corporation to the injured passengers, on the ground that their injuries were the direct and proximate result of the joint and concurrent negligence and recklessness of the driver of the bus and the driver of the truck. The first and second paragraphs of Burge's answer traversed the allegations of the petition; the third set out that the driver of the truck was "exercising due care" and that the injuries to the passengers were caused by the sole negligence of the driver of the bus. The fourth interposed a plea of res judicata, based on the trial of the action of the Consolidated Coach...