O'Keefe v. Baltimore Transit Co.

• Decision Date: 14 January 1953
• Docket Number: No. 62,62
• Citation: 94 A.2d 26,201 Md. 345
• Parties: O'KEEFE v. BALTIMORE TRANSIT CO.
• Court: Maryland Court of Appeals

Page 345

201 Md. 345

94 A.2d 26

O'KEEFE v. BALTIMORE TRANSIT CO.

No. 62.

Court of Appeals of Maryland.

Jan. 14, 1953.

Samuel S. Smalkin, Baltimore (Ginsberg & Ginsberg, Baltimore, on the brief), for appellant.

A. Frederick Taylor and Hamilton O'Dunne, both of Baltimore, for appellee.

Before DELAPLAINE, COLLINS, HENDERSON and HAMMOND, JJ.

COLLINS, Judge.

This is an appeal from a judgment entered on the verdict of the trial judge, sitting without a jury.

On August 13, 1948, the Baltimore Transit Company, appellee, entered a suit for contribution against the appellant as a joint tort-feasor. The declaration, for the purposes of this case, alleged that on about July 14, 1947, three suits were entered: one suit by Mildred Ailstock, a passenger in a taxicab owned by the defendant and operated by his agent; one suit by T. Bayard Williams, administrator of the estate of Anthony De Luca, deceased, who had likewise been a passenger in the taxicab of the defendant; and one suit by Julia De Luca, widow of Anthony De Luca, deceased, all against the Baltimore Transit Company, as well as the two operators of its streetcar, and against the defendant herein, Arthur O'Keefe, and his driver or operator, William Turner. The plaintiffs in those actions sought to recover damages in the total amount of $66,000 for the death of Anthony De Luca, for his medical and hospital expenses and conscious pain and suffering; and for injuries to his daughter, Mildred Ailstock, which claims arose out of an accident which occurred on February 18, 1947, about 12:23 A.M., when a taxicab owned by the defendant, O'Keefe, and operated by his agent, William Turner, 'in a careless, reckless and negligent manner in an Easterly direction from south across the open T rail double tracks of the Transit Company known and designated as a railroad crossing, where St. Helena Avenue crosses said tracks by smooth pavement from Dundalk Avenue when the streetcar of the plaintiff, The Baltimore Transit Company, was in plain view approaching said intersection along the railroad right-of-way which streetcar was seen or should have been seen by the defendant, O'Keefe's Agent, servant or employe, Turner, when he was in a place of safety, or in time to have removed his taxi-cab from the tracks of the Transit Company at the railroad crossing, so that by reason of his said failure so to do, a collision occurred and one of the passengers in said taxi-cab, Anthony De Luca, was killed and his daughter, Mildred Ailstock, the other passenger was injured. Subsequently, on or about the 19th day of June, 1948, before said suits were called for trial, said suits were settled in full by this plaintiff by payments before judgment as follows:

'1. T. Bayard Williams, Administrator, $1,500.00

'2. State of Maryland, to use of Julia De Luca, wife of Anthony De Luca, deceased $13,500.00

'3. Mildred Ailstock $350.00 or total of $15,350.00 and proper Releases were taken so that the liability of the defendant herein to the aforesaid plaintiffs in the three suits indicated was extinguished in full by said settlement as well as to protect this plaintiff in its claim for contribution under the applicable Joint Tort Feasors Act of 1941 and amendments thereto. Wherefore, the Plaintiff says that the accident out of which said injuries and settlements arose was caused and contributed to by the negligence of the defendant, O'Keefe, his agent, servant and employe, and under said joint Tort Feasor Act as amended the defendant has become and is liable to the plaintiff as a joint tort feasor for his proportion of fifty per centum of the joint liability in damages in said respective cases and costs of suit. Wherefore, this suit for contribution under the joint tort-feasor's act is brought and the plaintiff claims $16,000.00 for damages.' The appellant demurred generally to the declaration. After the demurrer was overruled and general issue pleas filed, the case was tried by the trial judge, without a jury, and from a judgment for $7,675 rendered for the plaintiff, appellee here, and against the defendant and appellant, the appeal comes to this Court.

The appellant contends primarily that the appellee, Baltimore Transit Company, could not without the consent or participation of the appellant, O'Keefe, settle out of court a case then pending against both of these parties and secure a release from the plaintiffs in that case and then, while that case still remains pending, institute an independent action for contribution against the appellant, O'Keefe. As alleged in the declaration on June 19, 1948, before the suits were called for trial, they were settled in full by the appellee here by payment before judgment. Releases were taken so that the liability of the appellant and appellee were extinguished in full. After taking these releases, and before the releases were filed in the pending cases, the action of contribution was filed by the appellee. It is now provided by Chapter 344, Section 22 of the Acts of 1941, Article 50, Section 21, 1951 Code: '(Right of Contribution; Accrual Pro Rata Share.) (a) The right of contribution exists among joint tortfeasors. (b) A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof. (c) A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.' Appellant contends that because of the last sentence of the Act of 1941, Chapter 344, Section 27(c), Article 50, Section 26(c), 1951 Code, this claim of the appellee for contribution could not be brought in a separate and independent action. The Act of 1941, Chapter 344, Section 27(c), and hereinafter referred to as Section 27(c), provides: 'A pleader may either (a) state as a cross-claim against a co-party any claim that the co-party is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant; or (b) move for judgment for contribution against any other joint judgment debtor, where in a single action a judgment has been entered against joint tortfeasors one of whom has discharged the judgment by payment or has paid more than his pro rata share thereof. If relief can be obtained as provided in this subsection no independent action shall be maintained to enforce the claim for contribution.' Assuming that this Act was in point of time effective in the case at bar, it is plain that Section 27(c)(a), supra, applies at the beginning of the proceedings and during the pleadings and that Section 27(c)(b) applies where the judgment has been entered. In the instant case settlement was made and releases secured after the pleadings were filed and before judgment was entered. Therefore, relief could not have been obtained by the appellee here against the appellant for contribution under Sections 27(c)(a) or 27(c)(b) and the last sentence of Section 27(c) does not apply to the instant case. Such a contingency as has now arisen is not provided for in Section 27(c), supra.

The General Rules of Practice and Procedure III Joinder of Parties and Claims; Third Party Practice were adopted by this Court November 27, 1947, effective January 1, 1948. Rule 7 thereunder provides that those rules supersede Code, Article 50, Section 26, 1951 Code, Page 4873, 1951 Code. As hereinbefore set forth, although the original action against the appellee and appellant here was instituted on July 17, 1947, settlement of the three cases was not made by the appellee and releases secured until June 19, 1948, when its right of contribution arose. The effect of these new Rules, supra, was not to obliterate existing substantial rights, but to effect only the procedure and remedies for the enforcement of those rights and the new Rules therefore certainly apply to future actions. Ireland v. Shipley, 165 Md. 90, 98, 166 A. 593; Kelch v. Keehn, 183 Md. 140, 36 A.2d 544. Compare East Coast Lines v. Mayor & City Council of Baltimore, 190 Md. 256, 279, 58 A.2d 290, 2 A.L.R.2d 386. There is no requirement in these rules that an action for contribution must be brought in the original action and cannot be brought in an independent action. Of course, one purpose of the new Rules is to avoid multiplicity of suits. By bringing this independent action it was not necessary to proceed further with the three pending suits.

It was said in the case of Consolidated Coach Corporation v. Burge, 245 Ky. 631, 54 S.W.2d 16, at page 18, 85 A.L.R. 1086: 'The rendition of judgments against the Consolidated Coach Corporation and their payment were not, under section 484, Ky. Statutes, a prerequisite and condition precedent to its right of action against Burge to enforce contribution as against him. The act of payment of compensation in the satisfaction of judgment or compromise to the injured passengers by the Consolidated Coach Corporation, if their injuries were the direct and proximate result of the joint and concurrent negligence of the drivers of the bus and the truck, fixed and determined its right of action against Burge. However, not being a party to the compromise settlements of the Consolidated Coach Corporation with the passengers, he is not bound thereby. But if the amounts were in good faith paid in pursuance to compromises, made honestly and in good faith, they are prima facie correct, with the legal right in Burge to offer evidence tending to show the nonexistence of any fact essential or necessary to establish he was not liable at the time to the injured passengers, or that the compensation that was paid by the Consolidated Coach Corporation to either or all of them, was not paid in good faith, or not in accordance with a compromise, or was unreasonable or excessive. * * * The action must be tried so far as his liability is...