George's Radio v. Capital Transit Co., 7801.

Citation75 US App. DC 187,126 F.2d 219
Decision Date02 February 1942
Docket NumberNo. 7801.,7801.
PartiesGEORGE'S RADIO, Inc., v. CAPITAL TRANSIT CO.
CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)

Mr. Lawrence Koenigsberger, of Washington, D. C., with whom Messrs. Morris Simon and Eugene Young, both of Washington, D. C., were on the brief, for appellant.

Mr. R. E. Lee Goff, of Washington, D. C., with whom Messrs. S. R. Bowen and H. W. Kelly, both of Washington, D. C., were on the brief, for appellee.

Before GRONER, Chief Justice, and VINSON and EDGERTON, Associate Justices.

GRONER, C. J.

The question in this case is whether — in the District of Columbia — a right of contribution exists and should be declared between two persons liable for a tort in the absence, on the part of either, of any personal participation, personal culpability, fraud, or moral wrong.

The question arises under these circumstances. On May 27, 1940, David Oisboid brought an action against George's Radio, Inc., and Capital Transit Company to recover damages sustained by him as the result of a collision between his automobile, a bus of Transit Company, and an automobile operated by an agent of Radio Company. Judgment went in favor of Oisboid against both defendants. Subsequently, Oisboid demanded that Radio Company pay the judgment in full and refused to take action against Transit Company. Radio Company thereupon brought this suit in equity against Oisboid, Transit Company, and the United States Marshal. The complaint charged, inter alia, that neither Transit Company nor itself was an intentional or wilful wrongdoer or guilty of any personal participation or culpability in the collision and that, as to each, the judgment was had only by reason of the relationship of principal and agent, under the doctrine of respondent superior. Radio Company asked that Oisboid be restrained from issuing execution, that the Marshal be restrained from levying, and that Transit Company be compelled to pay one-half of the judgment, or in the alternative, that Radio Company be permitted to pay the whole sum into the registry of the court and that Oisboid be required to assign one-half of the judgment to Radio Company. Transit Company and Oisboid moved to dismiss. The District Court sustained the motion, and the judgment was paid in full by Radio Company.

The trial court, in denying the right to contribution, concluded it was bound by our opinion in Curtis v. Welker.1 In that case the question was, as it is here, whether appellants were entitled to contribution. The case was one of neglect of official duties by directors of a corporation. There was a suit and judgment against some, and these sought contribution from the others, not parties to the original suit. We held that all were in pari delicto, but said that while there was much equity in the claim to contribution, we were not free to enforce it because, as we thought, to do so would be contrary to the decision of the Supreme Court in Union Stock Yds. Co. v. Chicago, etc., R. R. Co.2

If we were disposed to adhere to the view expressed in the Curtis case, our statement to that effect, without more, would settle this case. But we have reached the conclusion that in the Curtis case we misapprehended the effect of the Stock Yards decision and applied a rule that, in our present view, is not sustainable upon any fair basis of reasoning, is wrong, and should be overruled.

This conclusion involves, of course, the obligation of explanation, and so we set out, as briefly as possible, the reasons which impel our present position.

The contention that no right of contribution exists between joint tort-feasors in pari delicto is said by counsel for appellee to have become an established rule in a majority of American courts in which the question has arisen. The statement is not without foundation. Professor Prosser of the University of Minnesota in his Horn-book on Torts points out that the early American cases applied the rule against contribution only in cases of wilful misconduct, but that later, when the door was thrown open to joinder in one action of those who had caused the same damage, the distinction between wilful misconduct on the one hand and negligence or mistake on the other was often lost sight of and resulted in decisions in cases of the latter class, in which the courts refused contribution and left the loss to lie where it fell. In most of such cases the reason for the application of the no-contribution rule was said to be based on the principle that the knowledge of a person that he is responsible for all the consequences of a wrong will serve to restrain him, and will thus induce persons to guard themselves a little more warily against participation with others in acts which might produce tort liability. That there may be some basis for this theory in cases in which persons directly contemplate the commission of a wrongful act is obvious, but that it applies equally in cases of unintentional wrong strains one's credulity. To believe that the rule of no contribution will tend to make a careless person careful, or that a motorist who is not deterred from carelessness by fear of personal danger will be affected in his conduct by a legal rule of no contribution between joint wrongdoers, seems to us wholly fanciful.3

And this, we think, is the present trend of those courts in which the question has recently been considered. And the reason for the change of view, though variously expressed, in the main hinges on the doctrine that general principles of justice require that in the case of a common obligation, the discharge of it by one of the obligors without proportionate payment from the other, gives the latter an advantage to which he is not equitably entitled. As the result, it is now, we think, definitely established in the better considered cases that there may be contribution in favor of one who has vicariously been required to bear the whole loss.

We are, therefore, of opinion that the rule denying contribution in favor of unintentional or negligent tort-feasors is wrong to the same extent that it would be wrong to enforce contribution in the case of wilful wrongdoers or those guilty of flagrantly wrongful conduct, and we cite in the footnote below some of the cases in which the position we take is logically sustained.4

The distinction between the two classes of cases and between the rule and the exception, is explained and reasoned out to our satisfaction in Jacobs v. Pollard, 10 Cush., Mass., 287, 57 Am.Dec. 105, as follows: "It is undoubtedly the policy of the law to discountenance all actions in which a party seeks to enforce a demand originating in a wilful breach or violation, on his part, of the legal rights of others. Courts of law will not lend their aid to those who found their claims upon an illegal transaction. No one can be permitted to relieve himself from the consequences of having intentionally committed an unlawful act, by seeking an indemnity or contribution from those with whom or by whose authority such unlawful act was committed. But justice and sound policy, upon which this salutary rule is founded, alike require, that it should not be extended to cases, where parties have acted in good faith, without any unlawful design, or for the purpose of asserting a right in themselves or others, although they may have thereby infringed upon the legal rights of third persons. It is only when a person knows, or must be presumed to know that his act was unlawful, that the law will refuse to aid him in seeking an indemnity or contribution. It is the unlawful intention to violate another's rights, or a wilful ignorance and disregard of those rights, which deprives a party of his legal remedy in such cases. It has, therefore, been held, that the rule of law, that wrongdoers cannot have redress or contribution against each other, is confined to those cases where the person claiming redress or contribution, knew or must be presumed to have known, that the act, for which he has been mulcted in damages, was unlawful."

Some recent cases applying this principle are: Hobbs v. Hurley, 117 Me. 449, 104 A. 815; Ellis v. Chicago & N. W. Ry. Co., 167 Wis. 392, 167 N.W. 1048, 1049; Horrabin v. City of Des Moines, 198 Iowa 549, 199 N.W. 988, 38 A.L.R. 554; Underwriters at Lloyds of M. v. Smith, 166 Minn. 388, 208 N.W. 13; Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, 141 A. 231; Eureka Coal Co. v. Louisville & N. R. Co., 219 Ala. 286, 122 So. 169; Quatray v. Wicker, 178 La. 289, 151 So. 208. The sum and substance of the ruling in all is that, where the parties are not intentional and wilful wrongdoers, but are made such by legal inference or intendment, contribution may be enforced. Since in the case we are considering it is admitted that the acts, out of which the judgment was had, resulted from mere negligence and were involuntary and unintentional, we are of opinion that the correct rule to apply is that just above stated. Here, as we have seen, there was no personal participation in the wrong, and the liability of both parties in the original damage suit existed only as the result of the relationship of principal and agent under the doctrine of respondeat superior or, in other words, by implication of law. In the circumstances, it would, we think, be contrary to the principles of natural justice, of reason, and of common sense, to impose unconditionally the whole loss on one of them.

Counsel for appellee insist, however, that whatever may be our...

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