McKay v. Citizens Rapid Transit Co., 3634

• Decision Date: 01 May 1950
• Docket Number: No. 3634,3634
• Citation: 190 Va. 851,59 S.E.2d 121,20 A.L.R.2d 918
• Parties: , 20 A.L.R.2d 918 JOHNNY F. MCKAY AND WILBUR JONES v. CITIZENS RAPID TRANSIT COMPANY. Record
• Court: Virginia Supreme Court

Page 121

59 S.E.2d 121

190 Va. 851, 20 A.L.R.2d 918

JOHNNY F. MCKAY AND WILBUR JONES v. CITIZENS RAPID TRANSIT COMPANY.

Record No. 3634.

Supreme Court of Appeals of Virginia

May 1, 1950.

Jones, Blechman & Woltz, for the plaintiffs in error.

Phillips, Marshall & Blalock, for the defendant in error.

JUDGE: GREGORY

GREGORY, J., delivered the opinion of the court.

The Citizens Rapid Transit Company brought an action to recover damages paid by it in a compromise settlement of another action brought by Edna L. Patrick against said company, Garner, its agent, Johnny F. McKay, and Alexander McGill, for injuries she received while a passenger in a bus of the company when its bus collided with the trailer truck owned by McGill and operated by McKay. McGill and McKay were non-residents and all of the defendants were alleged to have been joint tort-feasors. When the case came on for trial on January 9, 1948, a compromise settlement of $10,000, admittedly fair, reasonable and in good faith, was reached by the transit company and Mrs. Patrick, and that case was dismissed, but prior to the dismissal the transit company demanded of McKay and McGill that they make a fifty per cent contribution to the $10,000 compromise settlement. This they refused.

Wilbur Jones, a non-resident of Virginia, living in North Carolina, was learned to be the lessee and operator of the trailer truck belonging to McGill. He was not a defendant in the original suit brought by Mrs. Patrick. The transit company demanded of Jones that he contribute fifty per cent of the $10,000 agreed to be paid Mrs. Patrick. He failed to make contribution. The transit company gave its check to Mrs. Patrick on the 5th day of February, 1948, for the agreed amount, and on the 17th day of February, 1948, the transit company filed its notice of motion for judgment, the present proceeding, against McKay, McGill, and Wilbur Jones, for contribution in the sum of $5,000. They were alleged to be joint tort-feasors and were served as non-residents under the provisions of section 2154(70) of the Code, 1942 (Michie), (section 8-67.1 of the Code of 1950).

On the return date of the notice the defendants appeared specially and moved to quash the process, alleging that the said Code section had no application. This motion to quash was promptly overruled. Thereupon the defendants filed a plea of the statute of limitations, alleging that the right of action accrued more than one year before the commencement of the action. The said plea of the statute of limitations was rejected.

Separate demurrers were filed by the defendants and grounds assigned, and these were overruled.

On the 23rd day of September, 1948, counsel for all parties stipulated that the payment of $10,000 to Mrs. Patrick was made by the check of the transit company and with the prior approval of its insurance carriers, Peerless Casualty Company and Globe Indemnity Company; that prior to the institution of the instant action the transit company was reimbursed by said insurance carriers in the amount of $10,000.

On the 23rd day of September, 1948, the transit company sought leave to amend its notice of motion by inserting therein the following language: 'This action for contribution is brought by Citizens Rapid Transit Company in its own right and for the use and benefit of Peerless Casualty Company, and Globe Indemnity Company, which, in equal proportions, reimbursed it for the aforesaid compromise settlement payment made to Mrs. Patrick.'

The foregoing amendment was allowed over the objection of the defendants. Again demurrers were filed to the amended notice, assigning as the principal ground that the said insurance carriers were not, as to the defendants, joint tort-feasors and that their relation to the plaintiff was purely contractual. The demurrers were overruled and a trial by jury was had. The case was dismissed as to McGill, and the jury found a verdict against Johnny McKay and Wilbur Jones in favor of the plaintiff for $5,000, which the court approved.

As previously stated, McKay and Jones were served with process under Code, 1942 (Michie), section 2154(70), (Code, 1950, section 8-67.1). They contend that this statute has no application and that the process was void. With this contention we cannot agree. We think the statute by express terms specifically covers a situation of this kind and authorizes such process and service thereof. We fail to understand how this contention could be made in the light of the express language of the statute.

At the time the suit of the transit company against the defendants was instituted more than one year had elapsed from the date of the accident to Mrs. Patrick. For this reason the defendants filed a plea of the statute of limitations in which it is asserted that the action of the transit company was barred by Code, 1942 (Michie), section 5818, (Code, 1950, section 8-24).

The plaintiffs in error rely upon United States Fidelity Co. v. Blue Diamond Coal Co., 161 Va. 373, 170 S.E. 728, in support of their plea of the one year statute of limitation. There, under section 12 (Code of 1930, section 1887(12)) of the Workmen's Compensation Act we held that where an employee is injured by a third party, such third party is in no way liable to the employee under the Workmen's Compensation Act; that his liability is merely that of a tort-feasor and under Code, 1942 (Michie), section 5818, unless the injured employee brings his action against the third party within one year from the time the injury was inflicted his right of action is barred. In the case at bar the Workmen's Compensation Act has no application. Here we are considering the right of insurance carriers, who have indemnified the transit company for the damages it paid to Mrs. Patrick, to enforce contribution against a wrongdoer who was in part responsible for the injury to Mrs. Patrick. In the Blue Diamond Case, which neither involved contribution nor subrogation, the cause of action against the wrongdoer arose at the time the employee was injured. In the case at bar the cause of action as to the transit company and its indemnitors did not arise until the $10,000 was paid Mrs. Patrick. Upon the payment by the indemnitors in the case at bar of the $10,000, they became subrogated to the right of contribution which had existed in favor of the transit company. This was a debt due by Jones and McKay to the insurance carriers after the latter had paid the $10,000.

Until the payment was made by the insurance carriers no right of contribution in their favor arose, and the statute of limitations could not begin to run until payment was made.

In Consolidated Coach Corp. v. Burge, 245 Ky. 631, 54 S.W. (2d) 16, 85 A.L.R. 1086, this pertinent language was used: 'As long then as the injured passengers' rights to compensation remained undetermined the subordinate right of the bus company to contribution continued, and on payment of the compensation to the injured passengers by the owners of the bus, whether in satisfaction of judgments against it in favor of the injured passengers, or pursuant to a payment on compromises, its cause of action to enforce its right of contribution against the owner of the truck immediately accrued and existed until barred by the statute of limitations.'

Kentucky has a contribution statute identical with that of Virginia. The North Carolina court in Gaffney v. Lumbermen's Mut. Cas. Co., 209 N.C. 515, 184 S.E. 46, holds that indemnitors are not joint tort-feasors and may not enforce contribution under the North Carolina statute.

In 13 Am. Jur., Contribution, section 88, this is said: 'Ordinarily, the statute of limitations does not commence to run against the right to enforce contribution until a cause of action arises and the claimant's right of action accrues. Accordingly, in a simple action for contribution the statute of limitations begins to run against the claim of a party entitled thereto at, and not until, the time when the event occurs which throws an inequitable share of the common burden or obligation on him -- usually the time when payment, discharge or satisfaction in whole or in part of such obligation is made, or, as sometimes stated, from the date of the transaction out of which the right to contribution arises. It does...