Kramer v. Morgan

• Decision Date: 23 July 1936
• Docket Number: No. 432.,432.
• Citation: 85 F.2d 96
• Parties: KRAMER et al. v. MORGAN.
• Court: U.S. Court of Appeals — Second Circuit

85 F.2d 96 (1936)

KRAMER et al. v. MORGAN.

No. 432.

Circuit Court of Appeals, Second Circuit.

July 23, 1936.

Rosendale & Dugan, of Albany, N. Y. (Patrick C. Dugan, of Albany, N. Y., of counsel), for appellant.

Cosgrove, Harter, Scanlon & Wright and Daniel Scanlon, all of Watertown, N. Y., for appellees.

Before L. HAND, AUGUSTUS N. HAND, and CHASE, Circuit Judges.

L. HAND, Circuit Judge.

This is an appeal by the defendant from a summary judgment in an action to recover for personal injuries caused in an automobile accident. The defendant was the owner of a motorcar which he allowed his son, Richard, to drive in the state of New York. While so doing, Richard collided with a car in which the plaintiffs were driving, and injured both of them. They sued Richard, and each recovered a judgment, the defendant having notice of the actions, while they were pending. Failing to collect from Richard, the plaintiffs now sue the defendant, and have got summary judgment against him upon the theory that the judgments against Richard are an estoppel here. Section 59 of the Vehicle and Traffic Law of the State of New York (Consol.Laws, c. 71), so far as relevant, reads as follows: "Every owner of a motor vehicle * * * operated upon a public highway shall be liable * * * for * * * injuries to persons or property resulting from negligence in the operation of such motor vehicle * * * by any person * * * using or operating the same with the permission * * * of such owner."

It will be observed that Richard and the defendant were not joint tort-feasors, but that the defendant's liability is imputed; he was in effect Richard's surety and could therefore recover over against him, if compelled to pay the loss. Robbins v. Chicago, 4 Wall. 657, 18 L.Ed. 427; Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712; George A. Fuller Co. v. Otis Elevator Co., 245 U.S. 489, 38 S.Ct. 180, 62 L.Ed. 422. It is indeed well settled that a judgment against the surety estops the principal, not only when he is vouched in, but also when he merely gets notice of the action. Robbins v. Chicago, supra; Washington Gaslight Co. v. District of Columbia, supra; B. Roth Tool Co. v. New Amsterdam Casualty Co., 161 F. 709 (C.C.A.8); Strathleven S. S. Co. v. Baulch, 244 F. 412 (C.C.A.4); Washington Exchange Bank v. Holland Co., 121 Ga. 305, 48 S.E. 912; Veazie v. Penobscot R. Co., 49 Me. 119; Heiser v. Hatch, 86 N.Y. 614. The reason is that the principal is bound to indemnify the surety and it is his duty to protect him; he should intervene in the defense of the action, in which event he would of course be bound by the judgment. However, when, as here, it is the principal who is sued, the surety has no such duty. The principal has no recourse over against him, nor does he owe any duty to the creditor except to pay if the creditor pursues him. Not being charged with the defense of the action, he is not bound by the judgment. Drummond v. Executor of Prestman, 12 Wheat. 515, 523, 6 L.Ed. 712 (semble); United States v. American Surety Co., 56 F.(2d) 734, 736 (C.C.A.2) (semble); Arrington v. Porter, 47 Ala. 714; Ex parte Young, L.R. 17 Ch.D. 668 (C.A.); Pico v. Webster, 14 Cal. 202, 73 Am.Dec. 647; McConnell v. Poor, 113 Iowa, 133, 84 N.W. 968, 52 L.R.A. 312; Barker v. Wheeler, 60 Neb. 470, 83 N.W. 678, 83 Am.St. Rep. 541; De Grieff v. Wilson, 30 N.J.Eq. 435, 437; Jackson v. Griswold, 4 Hill (N. Y.) 522; Giltinan v. Strong, 64 Pa. 242; P. Ballantine & Sons v. Etta M. Fenn, 84 Vt. 117, 78 A. 713, 40 L.R.A.(N.S.) 698; Larson v. Deering, 97 Wash. 616, 166 P. 1119. The situation has caused more confusion than would seem to have been necessary. It is of course possible for the surety to engage to pay any judgment obtained against the principal; but in that case the judgment does not operate as an estoppel; it is not used as evidence of any fact on which the liability depends, but is itself one of those which constitute it. Again, we note that we are not considering whether the judgment has any prima facie validity as evidence of the principal's liability; that is a vexed question which may or may not arise upon the trial. Lake County v. Massachusetts B. & I. Co., 75 F.(2d) 6 (C.C.A.5), and Moody v. Megee (D.C.) 31 F.(2d) 117, do not fall within either of...