Farmers Ins. Exchange v. Village of Hewitt, 39773

• Citation: 274 Minn. 246,143 N.W.2d 230
• Decision Date: 03 June 1966
• Docket Number: No. 39773,39773
• Parties: FARMERS INSURANCE EXCHANGE, Appellant, v. VILLAGE OF HEWITT and Village of Long Prairie, Respondents.
• Court: Supreme Court of Minnesota (US)

Page 230

143 N.W.2d 230

274 Minn. 246

FARMERS INSURANCE EXCHANGE, Appellant, v. VILLAGE OF HEWITT and Village of Long Prairie, Respondents.

No. 39773.

Supreme Court of Minnesota.

June 3, 1966.

Syllabus by the Court

1. Whatever rights the insurer of an alleged negligent driver of an automobile has to contribution from an alleged joint obligor it has as subrogee of the insured, and if the insured has no rights, neither does the insurer.

2. The case of Empire Fire & Marine Ins. Co. v. Williams, 265 Minn. 333, 121 N.W.2d 580, holding that the insurer of an intoxicated driver of an automobile cannot recover under Minn. St. 340.95 the damages it has paid as such insurer, does not determine the right of the intoxicated driver or his insurer to recover contribution from the vendor who allegedly made an illegal sale of the intoxicating liquor.

3. The right to contribution from a joint wrongdoer rests on common liability, not on joint negligence or joint tort. Common liability exists when two or more actors are liable to an injured party for the same damages, even though liability may rest on different grounds.

4. Where an automobile driver under the influence of intoxicating liquor causes damage to a third party, such driver and the vendor who illegally sold the intoxicating liquor are jointly liable to the injured party for the same damages.

5. Merely establishing that a driver of an automobile was under the influence of intoxicating liquor without more does not show such an intentional tort or wrong as to deprive such driver or his insured of seeking contribution from the vendor who allegedly made an illegal sale of the intoxicating liquor and who may be jointly liable to the injured party.

Montague, Applequist, Lyons, Nolan, Donovan & Knetsch, and Robert P. Nolan, Duluth, for appellant.

Reavill, Neimeyer, Johnson & Killen, Duluth, Meagher, Geer, Markham & Anderson, and Roderick Blanchard and O. C. Adamson, II, Minneapolis, for respondents.

OPINION

KNUTSON, Chief Justice.

This is an appeal from a summary judgment entered in favor of respondents.

There is no dispute in the facts and for the purposes of this opinion only the following must be assumed to be true:

Robert C. Wallace was insured by appellant insurance company under an automobile liability policy. He was involved in an automobile accident on July 9, 1960, in which Verna M. Koester and Harry Koester were injured. Prior to the accident Robert C. Wallace had been drinking at bars owned by respondent villages and was sold liquor when he was obviously intoxicated, in violation of Minn. St. 340.95. The accident occurred through his negligence, which was precipitated by the intoxication, and the intoxication was caused by the illegal sales.

The Koesters brought an action against Wallace and respondent villages. It was ordered that the suit be separated between the motorist and respondents, and the trial against Wallace was scheduled to be held first. The Koesters originally claimed damages in the sum of $91,600. Shortly before the trial appellant settled the claim against Wallace with the Koesters for.$19,000. Respondent village of Hewitt settled the claim against it for $8,000, and respondent village of Long Prairie settled the claim against it for $2,000. Thereafter this suit was brought by appellant to collect aliquot amounts from respondents so that the payments by all would be equalized, it being appellant's contention that it was entitled to contribution for the reason that all parties were liable to the Koesters for the damages inflicted upon them. Respondents moved for summary judgment on the basis that the complaint failed to state a claim upon which relief could be granted, and these motions were granted by the trial court.

Respondents rely for the most part on two propositions: (1) That plaintiff's right to recover is barred by Empire Fire & Marine Ins. Co. v. Williams, 265 Minn. 333, 121 N.W.2d 580, wherein we held that the insurer of a person who is illegally served intoxicating liquor has no right of recovery under Minn. St. 340.95 for damages it paid for injuries caused by the party consuming such liquor; and (2) that appellant is barred from recovery under the doctrine that one who is guilty of intentional tort cannot recover contribution from a joint tortfeasor or one under common liability to an injured party, depending largely upon Fidelity & Cas. Co. v. Christenson, 183 Minn. 182, 236 N.W. 618, 16 Minn.L.Rev. 118, and Kemerer v. State Farm Mutual Auto Ins. Co., 211 Minn. 249, 300 N.W. 793. 1. At the outset it is clear that whatever rights appellant has it has as a subrogee of Wallace, and that if Wallace has no right of contribution, neither does appellant. Empire Fire & Marine Ins. Co. v. Williams, 265 Minn. 333, 121 N.W.2d 580.

2. With respect to the first proposition, we did hold in the Empire Fire & Marine case that the insurer of an intoxicated driver of an automobile could not recover under Minn. St. 340.95 what it had paid out in damages and costs due to the negligent driving of the automobile by its insured for the reason that it was not one of the class of persons who had a cause of action under the statute. In that decision we relied on Randall v. Village of Excelsior, 258 Minn. 81, 103 N.W.2d 131, where we held that an intoxicated automobile driver could not recover against the seller of liquor to minors for injuries to himself for the reason that (258 Minn. 83, 103 N.W.2d 133) '(t)he Civil Damage Act does not create a cause of action in favor of one injured by his own intoxication. Only an innocent third person who is injured as a result of the intoxication of another is entitled to its benefits. Since neither the common law nor the Civil Damage Act gives plaintiff a right to recover for injury sustained as a result of his voluntary intoxication,' there could be no recovery. In Randall we relied upon Sworski v. Colman, 204 Minn. 474, 283 N.W. 778, and Cavin v. Smith, 228 Minn. 322, 37 N.W.2d 368. Following these cases, it was held in Empire Fire & Marine that inasmuch as the intoxicated driver had no right to recover against the illegal seller of liquor the insurer had no greater right. However, none of these cases dealt with the question of the right of an intoxicated driver or his insurer who had paid damages to a third person injured by the intoxicated driver to recover contribution from the vendor who illegally furnished liquor. That is the question presented here.

3. Contribution rests on common liability, not on joint negligence or joint tort. Common liability exists when two or more actors are liable to an injured party for the same damages, even though their liability may rest on different grounds. Thus it has been held that liability based on F.E.L.A. and liability based on our Wrongful Death Act, even though created by different statutes, may give rise to common liability where a third party is injured by the concurrent violation of both statutes. Zontelli Brothers v. Northern P. Ry. Co. (8 Cir.), 263 F.2d 194, 199. The court there said:

'* * * The thing that gives rise to liability * * * is that both parties were subject originally to a Common liability, and one has taken more than his just share of the money burden. * * *

'* * * There being common liability, the widow, through proper statutory representatives, had a cause of action against both of the contesting parties herein, and her failure to assert formal claim against one did not destroy the right of the other who made full payment to recover by way of contribution.'

Again, in Chicago, R.I. & P.R. Co. v. Chicago & N.W. Ry. Co., 280 F.2d 110, 114, the Federal court of the Eighth Circuit had occasion to consider the right to contribution between the two railroads, each of which had violated a different statutory provision for the protection of workmen. The court there said:

'* * * Both actions (for indemnity and contribution) are premised on a finding that two or more parties have been guilty of actionable wrong thereby bringing injury or damage to some third person. * * *

'* * * The essence of the action for contribution is Common liability to the injured person, not liability for Common negligence, or Similar negligence, or Like negligence. Simply stated, common liability means that each party, by reason of his wrongful act, is made legally liable to respond in damages to the injured party. Absent such liability on the part of the person from whom indemnity or contribution is sought, how can it be said, in evoking the equitable remedy, that the one seeking relief has borne an unfair share of the loss for which all are liable?'

In the case of Duluth, M. & N. Ry. Co. v. McCarthy, 183 Minn. 414, 236 N.W. 766, contribution was sought in a case where an automobile collided with plaintiff's freight train. Plaintiff settled the case by paying the injured party an amount in full discharge of his right of action, and then sought contribution from the driver of the automobile. In affirming a judgment granting plaintiff a right to recover half of what it had paid, we said (183 Minn. 418, 236 N.W. 768):

'The thing that gives rise to the liability in either case (indemnity or contribution) is that both parties were subject originally to a common liability, and one has taken more than his just share of the burden.'

In Employers Mutual Cas. Co. v. Chicago, St. P.M. & O. Ry. Co., 235 Minn. 304, 309, 50 N.W.2d 689, 693, again involving a collision between an automobile and a railway car, where the insurer of the driver of the automobile paid damages and sought contribution, we said:

'* * * 'Common liability' exists immediately after the acts of the tortfeasors which give rise to a cause of action against them. (Citation omitted.) But, in addition to the requirement of common liability, The right to contribution rests on a payment by one which thereby relieves the other from liability. Where others jointly liable pay the obligation and thereby...