Middlesboro H.T. Co. v. L. & N.R. Co.

• Decision Date: 01 June 1926
• Citation: 214 Ky. 822
• Court: United States State Supreme Court — District of Kentucky
• Parties: Middlesboro Home Telephone Company and Tri-State Telephone Company v. Louisville & Nashville Railroad Company.

214 Ky. 822

Middlesboro Home Telephone Company and Tri-State Telephone Company v. Louisville & Nashville Railroad Company.

Court of Appeals of Kentucky.

Decided June 1, 1926.

1. Indemnity — Recovery Over as Between Wrongdoers May Not be had Where They are "In Pari Delicto." — As between joint tortfeasors, recovery over will not be allowed where parties are in pari delicto, all parties participating in moral delinquency or turpitude being deemed "in pari delicto."

2. Indemnity — Railroad Held Not "In Pari Delicto" with Telephone Company Owning Sagging Cable Resulting in Injury to Employee, and Hence Recovery Over Might be Had. — Where railroad employee recovered against railroad for injury received from sagging telephone cable on hypothesis that company should have discovered condition of cable, railroad held not "in pari delicto" with telephone company owning cable, and hence recovery over might be had.

3. Indemnity — One Notified of Pendency of Action and Refusing to Defend is Concluded on Questions Determined which are Material to Recovery Against Him in Action for Indemnity. — One who is notified of pendency of action and given opportunity to defend is concluded as to all questions determined therein material to recovery against him in action for indemnity by defendant in original suit.

4. Limitation of Actions — Amendment to Cause of Action for Indemnity, Seeking to Include Attorney's Fees, Held Integral Part of Cause of Action and Therefore Not Barred by Limitations, where Original Action was Not Barred. — In action for indemnity, amendment seeking recovery of attorney's fees held not an independent cause of action, but merely integral part of original cause of action, and therefore not barred by five-year statute of limitations, where original action was filed before running of statute.

Appeal from Bell Circuit Court.

GEORGE C. WEBB, WM. BAXTER LEE and LEE, PRICE & MEEK for appellants.

LOW & BRYANT, WILLIAM LOW, WOODWARD, WARFIELD & HOBSON and ASHBY M. WARREN for appellee.

OPINION OF THE COURT BY COMMISSIONER SANDIDGE.

Affirming in part and reversing in part.

For convenience the appellants, Middlesboro Home Telephone Company and Tri-State Telephone Company, will be referred to as the "telephone company," and the appellee, Louisville & Nashville Railroad Company, will be referred to as the "railroad company." The railroad company operates a line of railroad through the city of Middlesboro, Kentucky, its tracks crossing Longwood road, one of the streets of that municipality. The telephone company has a line of telephone extending along that street, and where it crosses the railroad its telephone lines are carried in a cable two or three inches in diameter, which, as originally placed, was fastened to poles on either side of the railroad track approximately 22 feet from the ground and high enough to leave ample clearance for railroad trains and cars without danger to employees who might be upon or about them. On August 16, 1914, the hanger with which the cable was fastened to one of the poles had pulled loose and the cable had dropped upon and was supported by the telegraph line of the railroad company along its tracks. While in that condition Albert M. Mink, employed by the railroad company as a brakeman, while on top of one of the freight cars of a freight train, then passing under the telephone line, in the discharge of his duties, came in contact with the cable, was knocked down and received severe injuries. He instituted an action against the railroad company and recovered judgment for $1,350.00, which was affirmed by this court, in an opinion which may be found in 179 Ky., at page 626. Thereafter this action was instituted by the railroad company to recover from the telephone company the amount of that judgment, its interest and cost, and the cost incurred by it in defending the action. The telephone company by way of answer denied its liability, pleaded that Mink's injury was the result of the negligence of the railroad company, or of the joint negligence of the two companies for which it could not recover over. On the issues thus made the case went to trial; a jury was waived by agreement; and both the law and facts were submitted to the court for trial under a stipulation as to the facts. The trial court held that the railroad company was entitled to recover over and entered judgment in its favor accordingly. The appeal is prosecuted from that judgment.

It is insisted for the telephone company that this case falls clearly within that line of cases written by this court, of which City of Louisville v. Louisville Ry. Company, 156 Ky. 141; Owensboro City Railroad Company v. L.H. & St. L.R.R. Company, 165 Ky. 683; Cumberland Tel. & Tel. Company v. Mayfield Water & Light Company, 166 Ky. 429; and I.C.C.R.R. Company v. Louisville Bridge Company, 171 Ky. 445, are conspicuous examples, holding that courts will not lend their aid to bring about contribution or recovery over between joint tort feasors. On the other hand, the railroad company insists that even in those cases and in others, of which City of Georgetown v. Groff, 136 Ky. 662; and The Pullman Company v. C.N.O. & T.P.R.R. Company, 147 Ky. 498, are examples, this court has recognized the right of one wrongdoer less culpable than another to recover over although the wrong of each contributed to bring about the injury.

In our review of our own opinions and of those of the courts of other states and of the United States, in the consideration of the question presented by this appeal we are impressed that the outstanding opinion declaring the principles of law governing the questions now before us is that of the Supreme Court of the United States, in Washington Gas Company v. District of Columbia, 161 U.S. 316. In that case the gas company had been granted the right to use the streets of the city of Washington in laying its gas mains so as to supply that commodity to the residents of the city. An opening had been made through a sidewalk so that a valve on a gas line to a residence could be opened or closed as desired. The opening was protected by an iron covering set flush with the surface of the sidewalk which negligently had been left off for some time. As a result of the opening being left so unprotected a resident of the city was injured, sued the District of Columbia and recovered damages. The district thereupon sued the gas company for a recovery over. It resisted upon the ground that the district was a joint tort feasor. After first concluding the controversy between them that the legal duty rested primarily on the gas company to repair and supervise the gas box, the court reached the question as to whether or not there could be a recovery over. The opinion on that question reads:

"Second. Had the district a cause of action against the gas company resulting from the fact that it had been condemned to pay damages occasioned by the defective gas box, which it was the duty of the gas company to supervise and repair?

"An affirmative answer to this proposition is rendered necessary by both principle and authority. This court said in Chicago v. Robbins, 2 Black. 418, 422: `It is well settled that a municipal corporation having the exclusive care and control of the streets, is obliged to see that they are kept safe for the passage of persons and property, and to abate all nuisances that might prove dangerous; and if this plain duty is neglected, and any one is injured, it is liable for the damages sustained. The corporation has, however, a remedy over against the party that is in fault, and has so used the streets as to produce the injury, unless it was also a wrongdoer.' And the same doctrine is reiterated in almost the identical language in Robbins v. Chicago, 4 Wall. 657, 670.

"The principle thus announced qualifies and restrains within just limits the rigor of the rule which forbids recourse between wrongdoers. In the leading case of Lowell v. Boston & Lowell Railroad, 23 Pick. 24, 32, the doctrine was thus stated: `Our law, however, does not in every case disallow an action, by one wrongdoer against another, to recover damages incurred in consequence of their joint offence. The rule is, in pari delicto potior est conditio defendentis. If the parties are not equally criminal, the principal delinquent may be held responsible to his codelinquent for damages incurred by their joint offense. In respect to offences, in which is involved any moral delinquency or turpitude, all parties are deemed equally guilty, and courts will not inquire into their relative guilt. But where the offence is merely malum prohibitum, and is in no respect immoral, it is not against the policy of law to administer justice between them, although both parties are wrongdoers.'

"In Brooklyn v. Brooklyn City Railroad, 47 N. Y. 475, 487, the same rule was applied, the court saying: `Where the parties are not equally criminal, the principal delinquent may be held responsible to a codelinquent for damages paid by reason of the offense in which both are concerned in different degrees as perpetrators.' All the cases referred to involved only the right of a municipal corporation to recover over the amount of the damages for which it had been held liable in consequence of a defective street, occasioned by the neglect or failure of another to perform his legal duty. The rule, however, it not predicated on the peculiar or exceptional rights of municipal corporations. It is general in its nature. It has been applied to public piers. Oceanic Steam Navigation Co. v. Compania Transatlantica Espanola, 144 N.Y. 663; Ib. 134 N.Y. 461. To the right of a property owner to recover for damages which he had been compelled to pay for a defective wire attached by a gas light company to the chimney of the owner's house. Gray v. Boston Gas Light Co., 114 Mass. 149. To the right of a master to recover over the damages which he had been obliged to pay in consequence of a servant's...