Howard v. Spafford, 116-73

• Decision Date: 04 June 1974
• Docket Number: No. 116-73,116-73
• Citation: 321 A.2d 74,132 Vt. 434
• Court: Vermont Supreme Court
• Parties: James Hartness HOWARD, Third-Party Plaintiff-Appellant, v. Ann SPAFFORD, Third-Party Defendant-Appellee.

Page 74

321 A.2d 74

132 Vt. 434

James Hartness HOWARD, Third-Party Plaintiff-Appellant, v. Ann SPAFFORD, Third-Party Defendant-Appellee.

No. 116-73.

Supreme Court of Vermont.

June 4, 1974.

Downs, Rachlin & Martin, St. Johnsbury, for James Hartness howard.

Webber & Costello, Rutland, for Ann Spafford.

Before BARNEY, C. J., and SMITH, KEYSER, DALEY and LARROW, JJ.

LARROW, Justice.

This action originated as a civil action in which the original plaintiff, Dorothy Spafford, sued the original defendant Howard, now the third-party plaintiff, for personal injuries sustained in a two-car collision. Howard, the driver of one of the cars, brought his third-party action against Ann Spafford, the driver of the other car, seeking indemnity or contribution for her negligence as a joint tort-feasor. The trial court severed the third-party action and, after the original action was settled, dismissed the third-party complaint for failure to state a cause of action. The third-party plaintiff appeals.

Although many ramifications follow from the issue presented, the question may be simply stated. The appellant would have us rescind our long-standing rule against contribution between joint tort-feasors to permit contribution between negligent tortfeasors in proportion to their relative fault.

Appellant does not seriously question that the present law of Vermont precludes contribution among joint tortfeasors, intentional or negligent. The doctrine is rooted in two cases, Spalding v. Oakes, 42 Vt. 343 (1869) and Atkins v. Johnson, 43 Vt. 78 (1870). Atkins is distinguishable in that it involves an intentional tort, libel. Spalding is more closely in point, as it involved neglect to perform a legal duty. But, in any event, the two cases clearly adopted the settled law of many other jurisdictions at the time, and the rule has remained unchallenged in this jurisdiction to the present.

We are urged, however, that a relaxation of the rule is indicted by practical and theoretical considerations. The prevalence of automobile liability insurance is urged as the practical reason, and our comparative negligence statute (12 V.S.A. § 1036) as the theoretical reason. We find neigher reason compelling enough to substitute judicial fiat for legislative action.

It is of course true that most vehicles and their operators are covered by liability insurance. It is equally true, however, that all activities of a potential defendant are not so widely insured. Negligence has many forms distinct from automobile operation. We have never regarded the negligence of an automobile operator as essentially different from any other negligence, apart from our unsatisfactory experience with the statutory gross negligence test for liability to guest passengers, and any rule we might enunciate should, in logic, apply to all negligent torts. If insurers generally feel that logic or justice require some procedure for apportioning liability among themselves in proportion to fault, they should have little difficulty in securing appropriate legislation applicable to themselves, and even less in accomplishing the result by inter-company agreement.

The rule presently obtaining in this state is still the majority view. Cf. Annot. 60 A.L.R.2d 1366 (1958), and cases there cited. This alone does not require the rule's retention. But an additional reason for hesitation to change can be found in the history of the Uniform Contribution Among Tortfeasors Act. It was promulgated by the Commissioners on Uniform Laws in 1939, but has been adopted in only nine jurisdictions, two of which modified or eliminated the procedure provided therein for joinder of third parties. One state amended it to limit its application to joint judgment defendants. And so much opposition developed to the Act that the Commissioners have withdrawn it for further study and possible redrafting. Cf. A.T.L. Monograph Series, Comparative Negligence, at 72. This is at least a warning that contribution among joint tortfeasors introduces problems of its own. Combining such contribution with comparative negligence, particularly where there are multiple defendants, may well create a system which, however logical in theory, can be administered only by a trained judge, and not by a jury. The number and complexity of issues created, coupled with the prospect of the instructions which must be given, under pressure of time, to a jury before it retires, give rise to a spectre of trials replete with reversible error. And severance, which it might reduce the pressure, would not decrease the issues; it would increase the number of trials.

Strengthening our general view that the subject matter here involved is more appropriate for legislative than judicial consideration is the statistic that twenty-one jurisdictions have created a right of contribution by statute, and six by judicial decision. The statutes are not uniform; some provide for equal contribution, some for proportionate. Nor do the judicial decisions indicate a uniform result. In Dole v. Dow Chemical Co. et al., 30 N.Y.2d 143, 331 N.Y.S.2d 382, 282 N.E.2d 288 (1972), the N.Y. Court of Appeals, in a 5-2 decision, left in effect a statute providing for 50-50 contribution between joint tort-feasors subjected to the same judgment, but judicially enacted proportionate contribution where the second joint tortfeasor, not originally sued, was brought into the action by third-party complaint. In Packard v. Whiteen, 274 A.2d 169 (Me.1971), a case involving multi-party defendants, the Maine court adopted proportionate contribution among joint defendants while leaving intact the law set forth in its comparative negligence statute that (unlike Vermont) each defendant is jointly and severally liable to plaintiff for the full amount of plaintiff's damages. The leading Wisconsin case, Bielski v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962), also leaves joint and several liability intact, while changing the previous rule of equal contribution to one of proportionate contribution. The complexities which can follow upon the adoption of proportionate contribution by judicial decision are discussed and analyzed at length in Comment, Comparative Negligence and Comparative...