Huggins v. Graves

• Decision Date: 24 October 1962
• Docket Number: Civ. A. No. 3374.
• Parties: Harrell F. HUGGINS v. Dr. Joseph W. GRAVES and Nazareth Literary and Benevolent Institute v. Dr. Chester G. ADAMS et al., d/b/a Anesthesiologists, Associated, Third-Party Defendants.
• Court: U.S. District Court — Eastern District of Tennessee

210 F. Supp. 98

Harrell F. HUGGINS v. Dr. Joseph W. GRAVES and Nazareth Literary and Benevolent Institute v. Dr. Chester G. ADAMS et al., d/b/a Anesthesiologists, Associated, Third-Party Defendants.

Civ. A. No. 3374.

United States District Court E. D. Tennessee, S. D.

October 24, 1962.

H. Keith Harber, Goins, Gammon, Baker, & Robinson, Chattanooga, Tenn., for plaintiff.

Whitaker, Hall & Haynes, Chattanooga, Tenn., for Graves.

Spears, Moore, Rebman & Williams, Chattanooga, Tenn., for Nazareth L. & B. I.

Strang, Fletcher, Carriger & Walker, Chattanooga, Tenn., for Anesthesiologists, Associated.

FRANK W. WILSON, District Judge.

This case arose from the confusing of two patients in a hospital, and the consequent performing on each patient of the operation intended for the other. In the removal of two patients from their hospital rooms to the operating rooms, the hospital charts of the patients were mixed and each patient was then placed in the operating room scheduled for the other. The result was that the plaintiff, who had been scheduled for a hemorrhoidectomy at the hands of one doctor received instead an orchidectomy and hernia operation at the hands of another doctor. At the same time the patient scheduled for the orchidectomy and hernia operation received instead a hemorrhoidectomy. These errors were not discovered until some time later when one of the patients was returned to the other patient's room following the operation.

The principal suit was brought by Harrell F. Huggins, one of the patients, against Dr. Joseph W. Graves, who performed the orchidectomy upon the plaintiff, and against the Nazareth Literary and Benevolent Institute, the corporation which owns and operates the hospital in which the operation was performed. This lawsuit was based upon negligence.

Graves and Nazareth in turn filed third-party suits against Anesthesiologists, Associated, a partnership, one of whose members administered the anesthesia to the plaintiff, charging the third-party defendant with negligence in anesthetizing the plaintiff without having identified him and thereby preventing his identification by others. The third-party suit sought indemnity from the Anesthesiologists, upon the theory that the latter was guilty of active negligence while the original defendants were guilty of only passive negligence, if any; and sought contribution upon the theory that the Anesthesiologists were joint tortfeasors with Graves and Nazareth.

The case was submitted to a jury upon special issues and resulted in a verdict awarding $100,000 to Huggins against Graves and Nazareth and awarding contribution to Graves and Nazareth against the Anesthesiologists. The verdict found against any right to indemnity in the third-party suit.¹

The Anesthesiologists have moved for a directed verdict or for a judgment notwithstanding the verdict, upon the grounds, first, that contribution between or among joint tortfeasors is not permitted by the law of Tennessee; second, that even if contribution is permitted it can only be sought in a separate suit after judgment has been rendered against and paid by the party seeking contribution; and, finally, that the evidence was insufficient to support a finding that the Anesthesiologists were tortfeasors from whom contribution might be required. Whether contribution should be pro rata or on a comparative negligence basis is not in issue, because the parties stipulated before submission of the case to the jury that any contribution awarded should be upon a ratable basis, and the judgment accordingly provided for payment to Huggins of $50,000 each by Graves and Nazareth, and for recovery by Graves and Nazareth of $16,666.66 each against the Anesthesiologists.

With regard first to the question of the availability of contribution between or among tortfeasors, the common law rule on this question derived from the English case of Merryweather v. Nixan, 8 T.R. 186, 101 Eng.Rep. 1337. That case merely denied contribution between intentional wrongdoers, but has been made the basis of the view that, with few exceptions, contribution is generally unavailable among tortfeasors. See Restatement, Restitution, p. 387; Prosser, Torts, sec. 46 at p. 247. This was the view long ago adopted in Tennessee. Rhea v. White, 40 Tenn. 121; Anderson v. Saylors, 40 Tenn. 551. The question, then, is whether this rule has been changed in Tennessee. The Court is of the opinion that it has.

In Central Bank & Trust Co. v. Cohn (1924), 150 Tenn. 375, 264 S.W. 641, the Court permitted contribution between parties held jointly liable for a conversion of trust property, where the party seeking contribution had been guilty of a merely technical and unintentional conversion. The Court quoted with approval a statement from 2 Pomeroy, Equitable Remedies, sec. 916, that

"where several are jointly responsible for an act not necessarily nor ordinarily unlawful, one who acted without moral guilt or wrongful intent in the commission of the act, and who has paid the damages caused thereby, may recover contribution from the other wrongdoers."

The Cohn case represented at least some retreat from any absolute rule against contribution between tortfeasors.

Then, in Davis v. Broad Street Garage (1950), 191 Tenn. 320, 232 S.W.2d 355, contribution was allowed between two tortfeasors whose concurring negligence had caused personal injury to another. The significance of this holding was somewhat obscured by the Court's reference to Cohen v. Noel (1933), 165 Tenn. 600, 56 S.W.2d 744, an earlier case which had allowed indemnity to a tortfeasor guilty of "passive" or "negative" negligence, as against a co-tortfeasor guilty of "active" or "positive" or "affirmative" negligence.² The Court said that Cohen v. Noel had held that a "joint tortfeasor would be allowed contribution from another where his negligence was alleged to be only passive, whereas his adversary was guilty of active negligence." (Emphasis added.) Because of this language, it might be argued that the Davis case approved contribution between tortfeasors only in active-passive negligence situations. However, a careful reading of the remainder of the case compels the conclusion that the holding of the Court was not so limited.

For one thing, immediately after citing Cohen v. Noel, the Court cited Central Bank & Trust Co. v. Cohn, supra, for the proposition that contribution is available "upon the theory that the joint tortfeasors were `guiltless of any intended wrong,'" and then stated that

"Our cases make a clear distinction between wilful and intended wrongs in which the general rule of noncontribution is recognized and wrongs resulting from purely negligent acts, mistakes or other unintentional breaches of the law in which contribution is allowed." (p. 324, 232 S.W.2d p. 357.)

Further on, the Court apparently conceded that previous cases had not actually made the law as clear as this language would indicate, and, at the same time, demonstrated that the Court was not deciding the Davis case solely upon the rationale of Cohen v. Noel:

"This the Davis case itself may be a further extension of the exceptions to the rule as heretofore applied by the courts of this State. If it is, justice and right demand that this further extension to the exceptions be here applied." (p. 325, 232 S.W. 2d p. 357.)

Thereupon the Court quoted with approval the following language from Prosser:

"`There is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the plaintiff's whim or malevolence, or his collusion with the other wrongdoer * * *.' Prosser on Torts, page 1114." (pp. 325-326, 232 S.W.2d pp. 357, 358.)

The opinion then concludes with a quotation of the language, quoted above, from Pomeroy on Equitable Remedies.

Earlier in the opinion, the Court had stated that

"We, herein, only apply the rule and its exceptions insofar as they are applicable to the facts alleged in the instant bill." (p. 325, 232 S.W.2d p. 357.)

Commenting upon this language, Justice Tomlinson said in his dissenting opinion:

"I cannot escape the conclusion that the majority opinion, instead of making what it calls an exception to, reverses in fact the general rule prohibiting contribution among joint tort-feasors against whom a third party has obtained a judgment for the damage resulting by concurrence of their independent acts of negligence coinciding in time and place." (p. 329, 232 S.W.2d p. 359.)

Whereupon the Court, in an opinion upon a petition to rehear, stated as follows:

"Upon reconsideration and further thought the majority of this Court hold that the rule of law expressed in the majority opinion should be the law of Tennessee and not just applicable to the facts of the instant case. We feel that justice, right and equity demand this conclusion." (p. 330, 232 S.W.2d p. 359.)

Upon consideration of all aspects of the Davis case, this Court is of the opinion, as recognized by Justice Tomlinson in his dissent, that that case "instead of making what it at first calls an exception to, reverses in fact the general rule prohibiting contribution among joint tortfeasors."

This conclusion is supported by the commentators who have considered the matter. Thus one legal writer has observed that

"A reading of the opinion, the dissent, and the opinion on the petition to rehear in the Davis case leaves little doubt that the court recognized that the blanket prohibition against contribution among tortfeasors was an archaic doctrine, with little, if any, support in reason and concluded that equity and justice demanded that Tennessee align itself with modern authority and permit contribution among tortfeasors, except in the case of a willful tort, immoral action or conscious violation of the law." Sturdivant, Joint Tortfeasors in Tennessee and

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