Duncan v. Beres

• Decision Date: 31 December 1968
• Docket Number: No. 1,Docket No. 1797,1
• Citation: 15 Mich.App. 318,166 N.W.2d 678
• Parties: James DUNCAN and Nationwide Mutual Insurance Company, Subrogee, Plaintiffs, v. Julius E. BERES, Ind. and d/b/a Tonina's Bar, Defendant, Third-party plaintiff, Appellant, v. Mildred McARTHUR, Ind. and d/b/a Mickie's Cocktail Lounge, Third-party defendant, Appellee
• Court: Court of Appeal of Michigan — District of US

Page 678

166 N.W.2d 678

15 Mich.App. 318

James DUNCAN and Nationwide Mutual Insurance Company, Subrogee, Plaintiffs, v. Julius E. BERES, Ind. and d/b/a Tonina's Bar, Defendant, Third-party plaintiff, Appellant, v. Mildred McARTHUR, Ind. and d/b/a Mickie's Cocktail Lounge,

Third-party defendant, Appellee.

Docket No. 1797.

Court of Appeals of Michigan, Division No. 1.

Dec. 31, 1968.

Released for Publication April 16, 1969.

Seth H. Barsky, Caplan & Barsky, Detroit, for Julius E. Beres.

Alexander, Buchanan & Conklin, Detroit, for Mildred McArthur.

Davidson, Gotshall, Halsey, Kohl, Nelson, Secrest & Wardle, Detroit, for plaintiff in trial court.

Before KAVANAGH, P.J., and LEVIN and VANDER WAL, ^* JJ.

LEVIN, Judge.

Julius E. Beres, defendant and third-party plaintiff, appeals an accelerated judgment dismissing his third-party complaint. ¹ We reverse and hold that a tavern owner sued under the dramshop act ² may properly implead and seek contribution from another tavern owner claimed to have made a sale unlawful under that act causally connected with the plaintiff's injury.

I.

The exception for joint tort-feasors to the general duty to

make contribution.

As an exception to the general principle that those who have a common liability should share it equally, and to that end one paying more than his aliquot share may enforce contribution from others so liable, ³ the rule developed that so-called joint tort-feasors have no contribution liability one to another. ⁴ That exception has now been eliminated, at least as to negligent tort-feasors, in most jurisdictions, either by statute or judicial interpretation. ⁵

II.

The Michigan statute providing for contribution among

tort-feasors and impleader pursuant to the 1961

general procedural revision.

P.A.1941, No. 303, concerning contribution among and release of tort-feasors, provided (§ 1) that 'whenever a money judgment has been recovered jointly against 2 or more defendants' in an action for personal injury or property damage, each defendant who paid more than his pro rata share 'shall be entitled to contribution' from the other defendants. ⁶

As part of the recent general procedural revision, a third party practice was established for Michigan in GCR 1963, 204. The rule authorizes ⁷ the court to permit a defendant to file as third party plaintiff a complaint against a person 'who is or may thereafter be liable to such third party plaintiff by right of contribution, or otherwise, for all or part of the plaintiff's claim against him.'

Rule 204 does not, however, create substantive rights. The substantive basis for an impleader must be found elsewhere in principles of indemnity, subrogation, contribution, warranty, or other right. ⁸

So that the right to seek contribution should no longer depend on whether the plaintiff saw fit to sue both tort-feasors, ⁹ and as part of the general procedural revision, the following language was added to the 1941 statute providing for contribution among and release of tort-feasors (which, as so amended, became RJA, § 2925):

'Joint tort-feasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution.' ¹⁰

III.

Dramshop owners are under a common burden of liability.

Contribution may be enforced, however, only among persons whose equities are equal. That requirement is satisfied when the parties are under a common burden, obligation or liability to the plaintiff, statutorily or otherwise imposed or assumed. ¹¹

In this case, both the claim asserted by the plaintiffs against the third party plaintiff and that asserted by the third party plaintiff against the third party defendant arise under a common theory of liability to the plaintiffs. It is asserted that both the third party plaintiff and third party defendant made sales to the allegedly intoxicated person after he became intoxicated, sales that were causally connected with plaintiff's injuries.

If this is true, if violations of the dramshop act by both the third party plaintiff and the third party defendant contributed to plaintiffs' loss, then plaintiffs may recover all their damages from either of them. Franklin v. Frey (1895), 106 Mich. 76, 77, 78, 63 N.W. 970; Larabell v. Schuknecht (1944), 308 Mich. 419, 423, 14 N.W.2d 50. Thus would arise a common burden of liability under the dramshop act on the part of both tavern owners, and distinguishes this case from Virgilio v. Hartfield (1966), 4 Mich.App. 582, 145 N.W.2d 367.

Both Franklin v. Frey, Supra, and Larabell v. Schuknecht, Supra, refer to tavern owners whose separate violations of the dramshop act cause one injury as 'joint tort-feasors.' ¹² Tavern owners appear then to be within the coverage of the statute which, as amended (RJA, § 2925), declares that Joint tort-feasors summoned in as third party defendants may be liable for contribution.

IV.

The holding in Geid v. Slater.

But for Geib v. Slater (1948), 320 Mich. 316, 31 N.W.2d 65, ¹³ there would be little more that need be said. However, in that case the Court considered § 2 of the original statute providing for contribution among and release of tort-feasors, and ruled that a release of one tort-feasor operates to discharge another if their independent, concurring acts of negligence combined to cause the plaintiff's loss, because such tort-feasors are not Joint tort-feasors.

Historically, the Geib v. Slater Court was correct. Only those torts committed by feasors who both Consented to the enterprise and whose Concerted actions in its performance resulted in plaintiff's injury could be held Jointly.

'The original meaning of a 'joint tort' was that of vicarious liability for concerted action. All persons who acted in concert to commit a trespass, in pursuance of a common design, were held liable for the entire result.' Prosser, Law of Torts, p. 258. See, also, 1 Harper and James, The Law of Torts, § 10.1, p. 692.

Geib relied on Frye v. City of Detroit (1932), 256 Mich. 466, 239 N.W. 886, which had earlier declared that independent wrongdoers were not 'joint tort-feasors.'

The tavern owners are independent, and not concerted tort-feasors. It is claimed that their independent, nevertheless concurring, acts of negligence caused one injury. Thus, under Geib v. Slater the tavern owners are not 'joint tort-feasors' and, if that be so, the substantive justification for contribution cannot be predicated upon RJA, § 2925.

The fact that the term 'joint tort-feasor' has, as the Geib Court observed (p. 321, 31 N.W.2d 65), 'frequently been used carelessly,' ¹⁴ is a reason to avoid an esoteric meaning, rather than to adopt it. Perhaps 'carelessly', but, nevertheless, properly in the ordinary lexicon of the profession, the Michigan Supreme Court has frequently referred to independent wrongdoers whose breach of a common duty or concurring acts of negligence produced one injury as joint tort-feasors. ¹⁵

Nor should it be supposed that those who draft remedial statutes or amendments thereto are paragons. ¹⁶

Frye v. City of Detroit, Supra, relied upon in Geib, has been considerably restricted. See the opinions of the Court and Mr. Justice Black's concurrences in Maddux v. Donaldson (1961), 362 Mich. 425, 449, 108 N.W.2d 33, 100 A.L.R.2d 1, and Meier v. Holt (1956), 347 Mich. 430, 436, 446, 80 N.W.2d 207. ¹⁷

Geib's result is somewhat ironic. ¹⁸ The rules that contribution is not available among independent, concurring, negligent tort-feasors and that a release of one tort-feasor discharges the other are generally thought to have come about because of the kind of careless usage of the term Joint tort-feasor referred to in Geib. Both rules date to a time when only concerted wrongdoers could be sued jointly.

Following procedural reforms in this country permitting joinder in one action of independent, concurrent tort-feasors, the courts for the most part, without considering the differing policies that might be involved, uncritically adopted the rules regarding contribution and release of concerted, intentional wrongdoers and applied them to independent, concurrent, negligent wrongdoers who could now be held in one action jointly. ¹⁹

'The half truths of one generation tned at times to perpetuate themselves in the law as the whole truth of another, when constant repetition brings it about that qualifications, taken once for granted, are disregarded or forgotten.' per Cardozo, J. in Allegheny College v. National Chautauqua County Bank of Jamestown (1927), 246 N.Y. 369, 373, 159 N.E. 173, 174, 57 A.L.R. 980.

To restrict the definition of joint tort-feasors in this remedial legislation to its 18th century meaning is to protect those against whom the rules were originally erected ²⁰ and yet leave governed by such rules those who, but for the 'careless usage' referred to in Geib, may never have been covered thereby.

Geib's express holding can be avoided by the covenant not to sue expedient. ²¹ However, there is no similar escape hatch in the law of contribution. Geib should be overruled. ²²

Having explained why we cannot simply, on the authority of Franklin v. Frey, Supra, and Larabell v. Schuknecht, Supra, declare that the third party plaintiff and the third party defendant here are joint tort-feasors and, therefore, contribution may be allowed under RJA § 2925, we turn to a disposition of this case which we think both sound and within our authority and which makes it unnecessary for us to decide whether Geib v. Slater bars impleader by one tort-feasor of another in a case where it is claimed their independent acts of negligence concurred to cause one indivisible injury (see footnote 22).

V.

The general principle that there is a duty of contribution

should be applied where the tort-feasors'

liability does not depend upon proof of

wrongdoing.

The exception to the general rule of contribution for so-called joint tort-feasors goes back to Merriweather v. Nixan (1799), 8 TR 186 (101 Eng.Rep. 1337). In that case the...