North River Insurance Company v. Davis

• Decision Date: 07 September 1967
• Docket Number: No. 64-C-22-H.,64-C-22-H.
• Citation: 274 F. Supp. 146
• Parties: The NORTH RIVER INSURANCE COMPANY, Plaintiff, v. Joseph Henry DAVIS, Defendant.
• Court: U.S. District Court — Western District of Virginia

274 F. Supp. 146

The NORTH RIVER INSURANCE COMPANY, Plaintiff, v. Joseph Henry DAVIS, Defendant.

No. 64-C-22-H.

United States District Court W. D. Virginia, Harrisonburg Division.

September 7, 1967.

COPYRIGHT MATERIAL OMITTED

Rufus G. Coldwell, Jr., Browder, Russell, Little & Morris, Richmond, Va., for plaintiff.

J. Sloan Kuykendall, James L. Berry, Kuykendall & Whiting, Winchester, Va., for defendant.

OPINION AND JUDGMENT

MICHIE, District Judge.

Plaintiff, North River Insurance Company, brought this diversity action for contribution pursuant to Virginia Code § 8-627 against Joseph Henry Davis alleging that Davis was a joint tortfeasor with plaintiff's insured, Glen E. Schwartz, and that therefore the plaintiff is entitled to have him bear equally with it sums which plaintiff paid in settlement of actions in the Virginia State Courts on behalf of its insured, Glen E. Schwartz.

On the night of February 16, 1960, on U. S. Route 11 north of Winchester in Frederick County, Joseph Henry Davis was proceeding north in the right hand lane of the three-lane highway. Riding with him in his father's 1953 Chevrolet were Mr. Bart Conrath and Miss Sarah Slonaker (now Mrs. Sarah Slonaker Bias). The night was clear and the road surface was dry but, as it had recently snowed and was very cold, snow was piled in banks two or three feet high along the sides of the highway. For about a mile the defendant Davis had been driving behind a Mason-Dixon tractor-trailer proceeding at the rate of approximately 45 miles per hour. Considering passing the tractor-trailer, Davis while approximately 100 to 150 feet behind edged over toward or into the center of the three lanes to see if it was safe to pass. He saw four headlights coming toward him, indicating two cars abreast. Almost immediately, the car in the center lane, a black Buick driven by Glen E. Schwartz, cut toward its right side of the road. Appearing to have struck the front bumper of the car it was passing, a light-colored Pontiac, it ricocheted off the hardpacked snowbank, bounded back across the road and smashed into the front of the tractor-trailer. The debris of the black Buick which, after having struck the cab of the tractor-trailer, was in turn struck by the Pontiac, then collided with the Davis vehicle. Davis' car came to rest a little to the rear of the tractor-trailer and partially in the outer lane. Glen Schwartz and the driver of the truck were killed. The driver of the Pontiac, Clarence Adams, was severely injured. Davis and the other two occupants of his car received only slight injuries.

The parties stipulated that, if the defendant was liable at all, he was liable only in the amount of $11,840.59 representing one-half of the amount paid out by North River in settlement. The case was tried to a jury under the theory that Davis negligently pulled into the center lane to pass the tractor-trailer while the vehicle driven by Glen Schwartz was already there in the act of passing the Pontiac. The jury returned a verdict in favor of the plaintiff for the amount stipulated.

Defendant, renewing an earlier motion for a directed verdict, moved that the verdict be set aside and judgment entered in his favor. Attempting to impale the plaintiff on the horns of a dilemma, the defendant argues that under the circumstances of this accident it was legally impossible for both Schwartz and Davis to have been negligent. Before considering defendant's arguments, which are best summarized in the form of three legal syllogisms, it is well to take a look at the legal bases of a contribution action.

While no right of contribution among wrongdoers existed at common law, that right is now permitted by § 8-627 of the Code of Virginia of 1950 and may be enforced when the wrong is a mere act of negligence and involves no moral turpitude. The wrongdoer, of course, must be a joint tortfeasor; that is, the concurring negligence of both parties must have contributed to bring about the injury sustained by a third. Also, as between the wrongdoers, degrees of negligence are not to be considered. A third person suing two persons whose concurrent negligence contributed to his injury may recover from them either jointly or severally. Between two persons found to be jointly liable, the law does not attempt to apportion negligence but allows each to be responsible for one-half of the amount paid in damages so long as the negligence of each contributed in any degree toward the ultimate result.

One qualification imposed by the law is that the victim of the tort must have an exercisable right of action against the party from whom contribution is sought. Furthermore, the right to contribution arises only when one of the joint tortfeasors has paid a claim for which the other wrongdoer is also liable. The payment need not be the result of a judgment for the right of contribution will lie although no previous judgment determining the issues of negligence and contributory negligence has been obtained. It is sufficient in Virginia that the tortfeasor seeking contribution has paid out amounts in compromise settlement. The burden of showing that the settlement was not undertaken in good faith or that it was unreasonable or excessive is upon the person against whom the contribution is sought.

It must be remembered that the burden is upon the party seeking contribution to establish the concurring negligence of both parties. The defendant may, of course, introduce evidence to show that he was not negligent or that his negligence was not the proximate cause of the injuries. He may also defeat contribution by showing that the one seeking contribution was not negligent or that there was no concurrence of negligence. The preceding discussion is based upon the following cases decided by the Virginia Supreme Court of Appeals: Bartlett v. Recapping, Inc., 207 Va. 789 (1967); Maroulis v. Elliott, 207 Va. 503 (1967); Nationwide Mutual v. Jewel Tea Company, 202 Va. 527, 118 S.E.2d 646 (1961); Norfolk Southern Railway v. Gretakis, 162 Va. 597, 174 S.E. 841 (1934).

Keeping in mind that the North River Insurance Company, since its right to contribution stems from a compromise settlement must show both that its insured was negligent and that the defendant Davis was negligent and also that the negligence of both concurred to cause the accident, I now turn to a consideration of the defendant's arguments.

Since the plaintiff's case with respect to the alleged negligence of Davis was either that he undertook to pass the tractor-trailer while an oncoming car was occupying the center lane or, that if he was merely pulling out to see if he could pass, he did so negligently in that he crossed over the line dividing the right from the center line such a distance as to create a dangerous condition, the defendant introduced evidence to show that Davis did not attempt to pass the tractor-trailer but that he merely went out to look and that in going out to look he did so reasonably. Thus, the defendant argues, the facts establish that he pulled out a reasonable distance and therefore was not negligent. Since his action was reasonable and therefore did not create a dangerous condition, the defendant reasons, Schwartz's reaction as far as cutting back in too soon was unreasonable and therefore was negligent. On this ground the defendant urges that the negligence of Schwartz was the sole cause of the accident and, failing to show any negligence on the part of defendant Davis, the North River Insurance Company is not entitled to contribution.

In the alternative, Davis asks the court to assume, arguendo, that he was negligent in that he pulled out too far. Then, he says, Schwartz's reaction was entirely reasonable as he took the course that any prudent man would have taken under the circumstances; being confronted with a sudden emergency, he cut to his right as soon as possible in order to avoid a head-on collision. Thus, argues Davis, the accident is due solely to his negligence as the other driver, Schwartz, is excused from his actions because they were undertaken in the face of a sudden emergency. Since, therefore, Schwartz was not negligent, the North River Insurance Company has failed to establish that the accident was caused by the concurring negligence of Schwartz, which it has to do in order to recover, and, further, that North River's action in settling the state court suits was merely that of a volunteer.

As a third alternative, the defendant Davis again asks the court to assume, arguendo, that he is negligent and this time, that Schwartz was also negligent. However, he now urges that the negligence of Schwartz was a subsequent, independent and supervening cause which breaks the chain of proximate cause, absolving Davis, the original tortfeasor, from anything resulting thereafter.

In this diversity case the law of Virginia must guide the court in determining whether the jury's verdict should be upheld. Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938); Crosby v. Meredith, 300 F.2d 323 (4th Cir. 1962). Where the question is whether the evidence in a case justifies withdrawing it from the jury, the Virginia Supreme Court of Appeals has stated:

A determination, as a matter of law, that a party is guilty of, or is free from, negligence should be made only where the evidence is such that reasonable men could reach but one conclusion thereon; where fair-minded men, weighing the evidence and drawing all just inferences therefrom, would not differ in their views with relation thereto; where the evidence is without conflict and permits of one, and only one, fair result.

Giannone v. Johnson, Adm'x., 204 Va. 493, 496, 132 S.E.2d 445, 448 (1963). If, upon the evidence presented and...