Keitz v. National Paving & Contracting Co.
| Decision Date | 12 November 1957 |
| Docket Number | No. 242,242 |
| Parties | Ernest H. KEITZ, own use and use of Transit Casualty Co., etc. v. NATIONAL PAVING AND CONTRACTING CO., et al. |
| Court | Maryland Court of Appeals |
Everett L. Buckmaster, Baltimore (George L. Clarke, George W. White, Jr., and Buckmaster, White, Mindel & Clarke, Baltimore, on the brief), for appellant.
Jesse Slingluff, Jr., Baltimore (Piper & Marbury, Baltimore, on the brief), for Nat. Paving and Contracting Co.
Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.
The plaintiff below, Keitz, who lost a leg as the result of a collision between a bus he was driving and a truck, recovered a judgment against Ogle, the driver of the truck, and against Elizabeth May Sudbrook (hereinafter referred to as 'Sudbrook') the owner of the truck. A directed verdict was granted in favor of National Paving and Contracting Company (hereinafter referred to as 'National'), for whom the truck was hauling at the time of the accident. Keitz appealed, and in an opinion reported as Keitz v. National Paving & Contracting Co., Md., 134 A.2d 296, 303, we affirmed the judgment against Ogle and Sudbrook and reversed the judgment in favor of National, reserving for reargument one of the questions presented, as follows:
Keitz sued Ogle, Sudbrook and National. National participated in the trial which was before a jury. As is often now true, as a result of discovery procedures, Keitz, the plaintiff, presented his case largely by testimony of the defendants and their witnesses. The defendants' case was offered to the jury by cross-examination of the witnesses called by the plaintiff. At the conclusion of the plaintiff's
case, National was let out on a directed verdict, and Sudbrook offered no testimony for reasons that seem apparent. Ogle, to all intents and purposes, admitted his negligence, and the circumstances were such as not to permit either refutation or minimization, or a claim of contributory negligence. The extent and duration of Keitz's injury and disability could hardly be, and were not, seriously questioned. The unfortunate man lost a leg; his earnings, life expectancy, and medical expenses were not in dispute. The only live issue in the case was the one that remains still to be answered--was Ogle a servant of National?
It is argued earnestly that upon the granting of National's motion for a directed verdict, it no longer could offer evidence or prayers, participate in the argument to the jury, or file a motion for a new trial or a remittitur, and it would be inherently unfair and burdensome to bind it by a judgment rendered when it was no longer in the case. It is urged that it would not be reasonable or just to require a litigant in National's position either to forego his request for a directed verdict or suffer the vicissitudes of the action. It is suggested, on the one hand, that if one so situated fails to make the motion, he may be the victim of an unjustified jury verdict and, on the other, that if he makes the motion and it be granted, his co-defendants may not adequately protect his interest.
We think the judgment against Ogle and Sudbrook should conclude National as to the issues of Ogle's negligence and the damages suffered by Keitz, and that the case should be remanded for trial on the sole issue of whether Ogle was a servant of National. East Coast Freight Lines v. Mayor & C. C. of Baltimore, 190 Md. 256, 58 A.2d 290, 2 A.L.R.2d 386; Chesapeake & Ohio Canal Co. v. Allegany County Commissioners, 57 Md. 201, 224-225; Maryland Rules, rule 315, § e, subd. 3, rule 605, § d. At common law Sudbrook and National, who were not guilty of wilful or active negligence but liable, if at all, on the doctrine of respondeat superior, were joint tortfeasors, each entitled potentially to contribution if Ogle was the servant of each at the time of the accident. Restatement, Restitution, Sec. 99, and Sec. 85, Title C, 'Indemnity and Contribution
between Tortfeasors'. 1 Cases from other jurisdictions agree. 2 Maryland might well have agreed. Baltimore & Ohio R. Co. v. Howard County, 113 Md. 404, 414, et seq., 77 A. 930; Chesapeake & Ohio Canal Co. v. Allegany County Commissioners, supra.
In any event Maryland by statute has declared and amplified the common law on the subject. Chapter 539, Laws of Maryland 1927 (Code 1939, Art. 50, Sec. 13), provided that if judgment was recovered in tort against joint defendants, there was a right of contribution between them, and the one who paid more than his share could execute on the judgment against the others. Chapter 344 of the Laws of Maryland 1941 (Code 1951, Art. 50, Secs. 20-29), enacted as the law of Maryland most of the Uniform Contribution Among Tortfeasors Act. 2a Section 20 of Art. 50 defines joint tortfeasors to be: '* * * two or more persons jointly or severally liable in tort for the same injury to person or property, whether or not judgment has been recovered against all or some of them.' Section 21 says: 'The right of contribution exists among joint tortfeasors.' Section 22 recites: 'The recovery of a judgment by the injured person against one joint tortfeasor does not discharge the other joint tortfeasor.' Section 25 provides that: 'This sub-title does not impair any right of indemnity under existing law.'
The potential right of contribution that each joint tortfeasor has against another constitutes him in law an indemnitee pro tanto and entitles him, as such, to have other joint tortfeasors, if he calls upon them to do so, participate in the defense of the lawsuit by the claimant or be subject to the outcome of the action just as if they had participated. Restatement, Judgments, Sec. 109. 3 See also Restatement, Restitution, Sec. 76, Comment f; Sec. 81, Comment h; Sec. 86, Comment c, Illustration 1; Restatement, Judgments, Secs. 106, 107. 1 Freeman on Judgments, Fifth Ed., Secs. 444-450, both inclusive, agrees that the rule is well settled that one liable over in tort as indemnitor or contributor is concluded as to the right of the injured person to recover and
the amount of damages, by a judgment against the indemnitee or contributee who had notified him to defend. 4
What the Restatement and Freeman have agreed on is sometimes referred to as 'vouching in' one who is liable in whole or in part to an original defendant. Under very ancient practice, a warrantor of title to property could be brought in as a party to defend by a special writ for the purpose, the writ of voucher. 2 Pollock & Maitland, History of English Law, Second Ed., Note p. 71 and pages 158-163, 209, 662, 664. In cases where the writ was not allowable, by analogy, the judgment was made binding on the party responsible over if notice to defend was given. The practice of making notified parties responsible over concluded by the judgment has been part of the common law for centuries. It has been held to be the law of Maryland. Chesapeake & Ohio Canal Co. v. County Commissioners; Baltimore & Ohio R. Co. v. Howard County, both supra. Illustrative of the application of the principle are the opinions in Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 329, 330, 16 S.Ct. 564, 40 L.Ed. 712, 719-720; City of Waterbury v. Clark, 91 Conn. 254, 99 A. 578, 579; and State Bank of New Prague v. American Surety Co., 206 Minn. 137, 288 N.W. 7. In 40 L.R.A., N.S., 1172, there
is an annotation of cases on the subject. Examples of cases holding that the judgment is conclusive as to the fact that the damage was suffered as a result of negligence are collected on pages 1174 and 1175, and the cases holding that the damages are fixed by the amount of the first judgment are collected on pages 1175 and 1176.
As must be obvious, it is held that if one liable over actually participates in the trial, he is concluded by a judgment against the original defendant as to liability and amount of damages, even though he does not become a party of record. This is flatly held by Chesapeake & Ohio Canal Co. v. County Commissioners, supra, at pages 224-225 of 57 Md. See, too, Washington Gaslight Co. v. District of Columbia, supra; Hoskins v. Hotel Randolph Co., 203 Iowa 1152, 211 N.W. 423, 65 A.L.R. 1125; Masters v. Pardue, 91 Ga.App., 684, 86 S.E.2d 704; Lowrance Buick Co. v. Mullinax, 91 Ga.App. 865, 87 S.E.2d 412, 414. Restatement, Restitution, and Restatement, Judgments, make it apparent that if the person responsible over is duly notified the result is the same whether he appears or not. 5
It is apparent also that it matters not on the conclusiveness of the claimant's right to recover and the amount of damages whether one sought to be held as an indemnitor or as a contributor is vouched in by notice, is sued originally by the plaintiff as a co-defendant, or is impleaded under third-party practice by an original defendant. O'Keefe v. Baltimore Transit Co., 201 Md. 345, 94 A.2d 26; Maryland Rule 315, subds. a to f inclusive, and particularly Rule 315, subd. e, par. 3. See 'Contribution--Methods of Enforcing,' 14 Md.L.R. 97; 39 Am.Jur., Parties, Secs. 90, 91; 'Indemnity between Negligent Tortfeasors: A Proposed Rationale', 37 Iowa L.R. 517, at 553, et seq.; 'Procedural Aspects of Securing Tort Contribution in the Injured Plaintiff's Action', 47 Harvard L.R. 209; Wendell Allen, 'Joint Tortfeasors; Contribution; Indemnity; Procedure', Daily Rocord, June 7, 1948. There
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