National Trailer Convoy, Inc. v. Oklahoma Turnpike Authority

• Decision Date: 06 January 1967
• Docket Number: No. 41392,41392
• Citation: 434 P.2d 238,1967 OK 15
• Parties: NATIONAL TRAILER CONVOY, INC., a Corporation, Plaintiff in Error, v. OKLAHOMA TURNPIKE AUTHORITY, a Body Corporate and Politic, Defendant in Error.
• Court: Oklahoma Supreme Court

Page 238

434 P.2d 238

1967 OK 15

NATIONAL TRAILER CONVOY, INC., a Corporation, Plaintiff in Error, v. OKLAHOMA TURNPIKE AUTHORITY, a Body Corporate and Politic,

Defendant in Error.

No. 41392.

Supreme Court of Oklahoma.

Jan. 6, 1967.

Rehearing Denied Oct. 3, 1967.

Syllabus by the Court

1. At common law joint tortfeasors, as a general rule, have no right of contribution among themselves.

2. Where a judgment for damages is rendered against joint tortfeasors, contribution will not be enforced in favor of one of the joint defendants who pays the whole judgment.

3. Equity may be invoked to protect an existing right but has no power to change rights defined by law, or to create a right where none exists.

4. Additional Syllabus on Rehearing.

Title 12 O.S.1961, § 831, only furnishes a summary remedy whereby a judgment debtor, who is entitled to contribution, may have the benefit of the judgment to enforce his right to contribution, and does not abrogate the substantive law that joint tortfeasors have no right of contribution among themselves.

Appeal from the District Court of Tulsa County; Raymond W. Graham, Judge.

Action by one joint tortfeasor who was required to discharge more than proportionate share of judgment, to enforce contribution from other judgment debtor. The trial court sustained a demurrer to the petition and plaintiff appeals. Affirmed as modified.

Alfred B. Knight, Tulsa, for plaintiff in error.

Covington & Gibbon, A. M. Covington, Tulsa, for defendant in error.

BERRY, Justice.

A fatal automobile collision upon the Will Rogers Turnpike in 1958 culminated in the deceased's administratrix recovering a substantial judgment for damages, entered upon a jury verdict against the defendants, National Trailer Convoy, Inc. and its agent, Wix, and the Oklahoma Turnpike Authority. That judgment was affirmed by this Court on July 17, 1962. See National Trailer Convoy, Inc. v. Saul, Administratrix, Okl., 375 P.2d 922, for elaboration of the facts and the issues of law determined by that appeal.

On October 17, 1962, the Oklahoma Turnpike Authority and its insuror, hereafter designated defendant, or the Authority, entered into what was styled 'Agreement and Covenant Not To Proceed' with the administratrix. This agreement expressly stipulated that for a consideration of $40,000.00 the administratrix agreed to proceed solely against the other judgment debtors for the balance ($74,000.00) owed under the judgment.

Thereafter (October 25, 1963) National Trailer Convoy, as plaintiff, began the present action against the Authority. The petition, and amendments, alleged the foregoing matters, and rendition of the judgment against all defendants in an action predicated upon the theory of vicarious liability of each principal defendant arising from negligence of employees of each; at the date of judgment the Authority knew plaintiff's employee (Wix) was insolvent, except for coverage by an insurer known to be undergoing liquidation; subsequent to the date for making final claim against that insurer, and without notice or knowledge of plaintiff, the Authority and its insurer entered into the agreement mentioned; as a result of the remaining liability, and in order to avoid levy of execution upon the supersedeas bond, the plaintiff was required to pay the administratrix $74,000.00 to satisfy the balance, including interest, of the judgment and secure release of the bond. The petition alleged demand upon the Authority to pay its contributive portion of such payment had been refused, and prayed judgment against the defendant Authority for ($16,623.53) contribution.

Various motions were heard and overruled, including plaintiff's motion to make defendant's insurer a party upon the grounds the company was a proper party to be sued directly and had acted conjointly with the defendant in securing the Covenant. The trial court heard and determined the matter upon the demurrer to the petition upon the grounds the petition failed to state a cause of action, and because the Authority was not amenable to such action. Motion for new trial was overruled and plaintiff brought this appeal upon the original record.

Plaintiff presents four propositions as grounds for reversal. The basic argument, which essentially is two-fold, relates to the question of whether the Authority presently is immune from suit and liability for negligence. Plaintiff asserts that statutory enactments relating to turnpikes disclose clear legislative intention to subject the Authority to suit and liability as is reflected by the original turnpike legislation of 1947, 69 O.S.1951 §§ 653, 655(d). Then plaintiff says the 1959 amendments, (69 O.S.1961 §§ 653, 655(d)) carried forward authorization for the Authority to sue and be sued, although in exercise of its powers and functions the corporate entity was deemed an essential governmental function of the State. A second, closely related, argument is that even though the 1959 amendments to the turnpike legislation be interpreted as having reinstated the immunity of the Authority from suit, the plaintiff's cause of action is unaffected. This conclusion is bottomed upon the argument that governmental immunity extends only to actions for tort committed by agents, and does not extend to actions in contract or equity, which plaintiff relies on here.

Plaintiff recognizes the absence of specific declaration as to the effect of the 1959 amendments upon the previous waiver of governmental immunity of the Authority. However, it is argued that litigation engaged in by the Authority subsequent to such amendments must be considered significant, because these cases were negligence actions and the Authority made no attempt to defend upon the theory of immunity from suit or liability arising from negligence of agents or employees. See Oklahoma Turnpike Authority v. Kitchen, Okl., 337 P.2d 1081, and Oklahoma Turnpike Authority v. Walden, Okl., 371 P.2d 920.

It is unnecessary to determine questions arising from plaintiff's arguments as to whether the Authority's immunity from suit and liability for negligence was waived or extended by the 1959 amendments. The judgment involved was rendered upon a cause of action which arose prior to the amendments. In the ultimate analysis plaintiff urges that the decisive issue is * * * whether, in the absence of being joint tortfeasors, is there a right to contribution or equitable right of indemnity between joint judgment debtors in Oklahoma.'

Plaintiff acknowledges the general rule to be that, in absence of statute, where injury results to a third party from concurring negligence of several wrongdoers there exists no right of contribution although one is compelled to discharge more than his share of the liability. 18 Am.Jur. (2) § 33. As to contribution under express statutory authorization, see annotations: 60 A.L.R.2d 1368. The argument is that the rule can apply only to tortfeasors whose active negligence concurred in causing injury to a third party. Upon this basis plaintiff urges the primary negligence involved was that of plaintiff's employee who was insolvent, and thus the only parties capable of satisfying the judgment were not actively negligent and their liability was fixed only as the result of negligence of their employees.

Prior decisions of this Court have considered the matter of the right of contribution between joint tortfeasors. In Fakes v. Price, 18 Okl. 413, 89 P. 1123, the syllabi state:

'It is a well-established and settled rule that among wrongdoers the law raises no implied promise or right of contribution. The legal maxim is, 'In pari delicto potior est conditio defendantis.''

'Where a judgment for damages is rendered against joint tort-feasors, contribution will not be enforced in favor of one of the joint defendants who pays the whole judgment, but this rule does not apply to a judgment for court costs in such a case.'

In Cain v. Quannah Light & Ice Co., 131 Okl. 25, 267 P. 641, this rule was approved by restatement in the third syllabus. The rule above quoted has been recognized as controlling in this State and has been applied by the Federal Courts in Calvery v. Peak Drilling Co., (W.D.Okl.) 118 F.Supp. 335; and United States v. Acord et al. (CCA10) 209 F.2d 709. Also see annotations: 140 A.L.R. 1301; 24 A.L.R.2d 319; 60 A.L.R.2d 1366, wherein the text statement § 3(a) at page 1373 states:

'A relatively large majority of jurisdictions in which the contribution rights of negligent joint tortfeasors are not controlled by statute hold that the fact that joint tortfeasors' injury-causing conduct was negligent, rather than wilful or intentional, furnishes no basis for freeing them of the burden of the general rule that there can be no contribution among joint tortfeasors.'

Our decision in Cain v. Quannah Light & Ice Co. is cited as supporting the text statement. Also see Builders Supply Co. v. McCabe, 366 Pa. 322, 77 A.2d 368, 24 A.L.R.2d 319, 329, as to conclusiveness of judgment in cases where contribution is sought between indemnitor and indemnitee.

Plaintiff concedes the general rule does not permit contribution, but urges such rule is subject to an exception which permits the right of contribution between joint tortfeasors where they are not the primary wrongdoers or guilty of active negligence. It is plaintiff's argument that its driver (Wix) was the active wrongdoer, and the only responsibility against plaintiff and defendant was constructive fault which made them vicariously liable, thus bringing both within the exception to the general rule. This contention raises no question necessary for determination, since based upon the claim that both parties' liability was vicarious only. The conclusion in the Saul appeal, supra, discloses the lack of merit in this claim. We pointed out therein that the jury determined plaintiff's responsibility both upon the plaintiff's liability for negligence of its contractor, and upon the primary liability of plai...