Fidelity & Casualty Company of New York v. Christenson
| Decision Date | 02 April 1931 |
| Docket Number | 28,343 |
| Citation | 236 N.W. 618,183 Minn. 182 |
| Parties | FIDELITY & CASUALTY COMPANY OF NEW YORK v. NATHANIEL CHRISTENSON |
| Court | Minnesota Supreme Court |
Action in the district court for Hennepin county to recover of defendant one-half the amount which plaintiff, as insurer of one Sechter, paid in settlement of a judgment against Sechter in favor of one Lundin, who was injured while riding as a guest in defendant's auto when it collided with Sechter's truck, parked without lights after dark on a business street in the city of St. Paul. Plaintiff recovered a verdict of $1,665.04, and defendant appealed from an order Salmon, J. denying his alternative motion for judgment or a new trial. Reversed and judgment ordered for defendant.
Insurer not entitled to contribution.
1. A truck owner parked his truck on a public street, in the nighttime, without any rear light burning thereon. A collision occurred with a Ford car, the owner and driver of which was guilty of ordinary negligence only. The negligence of each was a proximate and contributing cause of injury to a guest passenger in the Ford car. The injured party recovered a verdict against the truck owner. The judgment was paid by plaintiff, the insurer of the truck owner, which became subrogated to any right of contribution which the truck owner might have against the owner of the Ford car. Plaintiff seeks here to recover contribution from the owner of the Ford car. For reasons stated in the opinion it is held that plaintiff is not entitled to such contribution.
Intentional violator of statute cannot obtain contribution from one guilty of mere negligence.
2. Where the one seeking contribution has intentionally violated a statute or ordinance, thereby causing injury to another, he is guilty of an intentional wrong and illegal act and is not entitled to contribution from one whose mere negligence contributed to cause the injury.
Merriam & Wright, for appellant.
Briggs Weyl & Briggs, for respondent.
Defendant appeals from an order denying his alternative motion for judgment notwithstanding the verdict or for a new trial.
1. At six 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 eight 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 $1,655.04.
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, 390, 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 A.S.R. 359, it is held that there is no right of contribution where the wrong complained of was intentional.
In Mayberry v. N.P. 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, 166 Minn. 388, 389, 208 N.W. 13, 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, 37 Minn. 109, 33 N.W. 320, 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."
1 Cooley, Torts (3 ed.) p. 258, states:
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