Fidelity & Casualty Co. of New York v. Christenson
| Decision Date | 02 April 1931 |
| Docket Number | No. 28343.,28343. |
| Parties | FIDELITY & CASUALTY CO. OF NEW YORK v. CHRISTENSON. |
| Court | Minnesota Supreme Court |
Appeal from District Court, Hennepin County; T. H. Salmon, Judge.
Action by the Fidelity & Casualty Company of New York against Nathaniel Christenson. There was a verdict for plaintiff, and, from an order denying his alternative motion for judgment notwithstanding the verdict or for new trial, defendant appeals.
Reversed and rendered.
Merriam & Wright, of Minneapolis, for appellant.
Briggs, Weyl & Briggs, of St. Paul, for respondent.
Defendant appeals from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial.
1. At 6 o'clock p. m. on February 24, 1927, one Sechter parked his automobile truck in a business section of St. Paul on the north side of University avenue. In violation of a statute, the red tail light on the truck was not lighted; Sechter intentionally left it in that condition. The avenue was well lighted on both sides by electric street lamps standing about 15 feet high and about 117 feet apart, each located about one foot from the curb There were other automobiles parked in the same block ahead and behind Sechter's truck.
About 8 o'clock that evening defendant, Christenson, was proceeding westward on the avenue in a Ford roadster. With him were two women, one sitting on the lap of the other. His car was inclosed by curtains with windows therein, and had the usual windshield in front. He was driving about 20 miles an hour. A small bolt to which the auto top was fastened protruded from the body of the Ford just behind the door. The bolt struck the left rear portion of the truck platform. The force of the collision pulled the top off the Ford and broke the windshield. The car was otherwise damaged. One of the women was thrown to the pavement and sustained serious injuries.
The injured woman brought an action in the district court of Ramsey county against Sechter, who at the time of the accident was insured by the plaintiff herein. Plaintiff defended in that action and subsequently paid a judgment in the sum of $3,330.08. This action was brought by plaintiff, which had been subrogated to Sechter's rights, to recover contribution to the extent of one-half of the amount so paid. At the first trial there was a verdict for defendant. A new trial was granted. On such new trial defendant's motion at the close of the evidence for a directed verdict was denied; plaintiff had a verdict for $1,665.04.
For the purposes of this case there is no question as to Sechter's negligence. The jury rightly concluded from the evidence that the defendant was guilty of negligence. He had not, however, violated a statute. The determinative question here involved is as to whether, under the facts stated, plaintiff, as a successor in interest to Sechter, was entitled to contribution from defendant.
2. It is the general rule, as stated in Underwriters at Lloyds v. Smith, 166 Minn. 388, 208 N. W. 13, 14, that "there is no right of contribution between wrongdoers, and that the fact that one wrongdoer has been compelled to respond in damages for the wrong gives him no claim against other wrongdoers which the courts will recognize or enforce."
This general rule, however, has been modified in many jurisdictions. 13 C. J. p. 830, and cases cited in note 19. A modified rule was adopted by this court in Ankeny v. Moffett, 37 Minn. 109, 33 N. W. 320, and has since been followed. In that case the court said that the general rule is applicable "only where the person seeking the contribution was guilty of an intentional wrong, or, at least, where he must be presumed to have known that he was doing an illegal act." Contribution was there permitted because the party seeking contribution had not been guilty of an intentional wrong or bad faith, or of any illegal act, and had been guilty of mere negligence. In Engstrand v. Kleffman, 86 Minn. 403, 90 N. W. 1054, 91 Am. St. Rep. 359, it is held that there is no right of contribution where the wrong complained of was intentional. In Mayberry v. Northern Pacific Ry. Co., 100 Minn. 79, 110 N. W. 356, 12 L. R. A. (N. S.) 675, 10 Ann. Cas. 754, it is stated that the general rule does not apply to torts which are the result of mere negligence. In the well-considered case of Underwriters at Lloyds v. Smith, supra, the syllabus reads: "Where the ground of liability is simply the negligence of each while engaged in lawful undertakings, the one who has been compelled to respond in damages therefor may enforce contribution from the others." The opinion cites and states the substance of the holding in Ankeny v. Moffett, supra, and concludes by saying that the rule there stated is adhered to.
The modified rule has been stated in various terms by different courts and text-writers. The text-writer in 13 C. J. p. 830, § 21, states: "The rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing a wrongful act, or where the wrong committed was in itself illegal."
Cooley on Torts (3d Ed.) p. 258, states: (Citing Acheson v. Miller, 2 Ohio St. 203, 59 Am. Dec. 663.) The author continues: ...
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