Lutz v. Boltz
| Decision Date | 04 November 1953 |
| Parties | , 48 Del. 197 LUTZ et al. v. BOLTZ et al. |
| Court | Delaware Superior Court |
Joseph H. Flanzer, Wilmington, for plaintiffs.
William Prickett, Wilmington, for defendant Ammon J. Boltz.
In order to get at the merits of the present controversy, I shall not consider the propriety of raising this issue by an objection to the filing of the proposed amendment.
The question for determination is whether a tort-feasor may recover contribution from another, whose negligence concurred in producing an injury, but who is himself not liable to the injured person.
Title 21 Del.C. § 6101 bars a recovery by a nonpaying guest from the operator of a vehicle, unless the accident was intentional on the part of the operator, or was caused by his wilful or wanton disregard of the rights of others. In the proposed counterclaim, there is no charge of any such intentional, wilful or wanton conduct; it is clear, therefore, that the other three plaintiffs would have no cause of action against Martin Lutz for their injuries. The defendant does not dispute this.
Prior to 1949, no right of contribution existed between joint tort-feasors in this State. Distefano v. Lamborn, Del.Super., 81 A.2d 675, and Del.Super., 83 A.2d 300. In that year, the Uniform Contribution Among Tort-feasors Act was adopted with some modifications. It was carried into the Code of 1953 as Title 10, Chapter 63. Any right of this defendant to contribution from Lutz necessarily, therefore, depends entirely upon the provisions of that Act.
The first part of the Chapter, Section 6301, contains this definition:
'For the purposes of this chapter, 'joint tort-feasors' means 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.'
The next Section, 6302, states that the right of contribution exists among joint tort-feasors. It also provides that a joint tort-feasor 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. Elsewhere the Act also contains the phrase 'common liability'. It is clear from the very language of the statute itself that it has no application unless there is a 'common liability' to the injured person. This liability may be joint or several, but there is no right to contribution unless the injured person has a possible remedy against two or more persons. A contrary ruling would render Lutz liable indirectly for a claim upon which he may not be held liable directly.
This thought is supported by the notes of the Commissioners who prepared the Uniform Act. In 9 U.L.A. 156, there appears this sentence: 'The common obligation contemplated by this Act is the common liability of the tortfeasors to suffer...
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Carolina Cas. Ins. Co. v. Insurance Co. of North America
...for the entire judgment. See Diamond State Tel. Co. v. University of Delaware, 269 A.2d 52, 56 (Del.1970); Lutz v. Boltz, 9 Terry 197, 100 A.2d 647 (Del.Super.1953); Leishman v. Brady, 9 W.W.Harr. 559, 3 A.2d 118, 120-21 (Del.Super.1938); 86 C.J.S. Torts § 35, at 951 n.20 (1954) ("where ind......
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Montgomery County v. Valk Mfg. Co.
...See Troutman v. Modlin, 353 F.2d 382, 387 (8th Cir.1965); Rigsby v. Tyre, 380 A.2d 1371, 1373 (Del.Super.Ct.1977); Lutz v. Boltz, 48 Del. 197, 100 A.2d 647, 648 (1953); Baldonado v. Navajo Freight Lines, 90 N.M. 284, 562 P.2d 1138, 1139 (1977), rev'd on other grounds, 90 N.M. 264, 562 P.2d ......
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Mar–Cone Appliance Parts Co. v. Mangan
...“common liability to injured person and unless injured person has possible remedy against two or more persons.” (citing Lutz v. Boltz, 100 A.2d 647, 648 (Del.Super.1953) (construing Delaware's Uniform Contribution of Tortfeasors Act, Del.Code Ann. tit. 10, §§ 6301–6308 (1953))). New York, b......
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In re Rural/Metro Corp. Stockholders Litig.
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