Parker v. Rodgers

• Decision Date: 29 January 1937
• Docket Number: 202-1936
• Citation: Parker v. Rodgers, 125 Pa.Super. 48, 189 A. 693 (Pa. Super. Ct. 1937)
• Parties: Parker, (to use, Appellant,) v. Rodgers et al
• Court: Pennsylvania Superior Court

189 A. 693

125 Pa.Super. 48

Parker, (to use, Appellant,) v. Rodgers et al

No. 202-1936

Superior Court of Pennsylvania

January 29, 1937

Argued October 14, 1936

Appeal from order of C. P. No. 2, Phila. Co., Sept. T., 1933, No 6337, in case of Dorothy Keebler Parker, formerly Dorothy Keebler, to use of Charles T. Bunting, v. Marion W. Rodgers et al., and Harleysville Mutual Casualty Company, garnishee.

Attachment execution proceeding.

The facts are stated in the opinion of the Superior Court.

Rule to strike off marking of judgment to use, quash attachment and mark judgment satisfied, made absolute, opinion by Gordon, P J. Use-plaintiff appealed.

Error assigned, among others, was order making absolute the rule.

Judgment affirmed.

Francis Chapman, with him W. A. Hamilton, for appellant.

Elston C. Cole, with him Oliver C. Riethmiller, for appellees.

Before Keller, P. J., Cunningham, Baldrige, Stadtfeld, Parker, James and Rhodes, JJ.

OPINION

Parker, J.

The questions raised on this appeal involve the right of contribution between joint tort feasors against whom a judgment has been recovered, and, more particularly, the measure to be applied if contribution is allowed.

Dorothy Keebler Parker brought an action in trespass against Marion W. Rodgers, Robert Glenzinger and Margaret Paugh to recover damages for an injury sustained in a collision between an automobile owned and operated by Rodgers and an automobile owned by Mrs. Paugh and driven by Glenzinger. A trial by jury resulted in a verdict of $ 6,000 for plaintiff against the three defendants. Harleysville Mutual Casualty Company, which had insured Mrs. Paugh as owner of one car and Glenzinger who was operating it, paid to plaintiff one-half of the judgment, $ 3,000 with interest. Defendant Rodgers then paid the remaining one-half by purchasing the judgment for $ 3,000 and interest, and causing it to be marked to the use of Charles T. Bunting. It appeared that Bunting was acting for the insurance carrier of Rodgers, but the fact that this is a contest between the respective insurance companies in no way affects the questions involved. Bunting then issued an attachment execution naming Harleysville Mutual Casualty Company as garnishee to recover contribution on the theory that as among the defendants each was liable for one-third of the whole judgment. The garnishee, contending that Mrs. Paugh and her driver were liable as to Rodgers for only one-half of the judgment, took a rule to show cause why the judgment to use should not be stricken off, the attachment quashed and the prothonotary directed to mark the judgment satisfied. An answer was filed and after argument the rule was made absolute when an appeal was taken to this court. We are of the opinion that the court below correctly disposed of the matter.

We will first consider the question which goes directly to the merits of the controversy and later refer to a technical defense raised for the first time in this court. We will assume, as the court below and the parties have, that the facts bring this case within an exception to the general rule that contribution may not be enforced among joint tort feasors, which exception was recognized in the case of Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, 141 A. 231. This brings us at once to a consideration of the basis upon which contribution should be allowed. The record establishes the facts that while Mrs. Parker recovered a judgment against all three defendants, thereby making each of them liable to her for the entire judgment, Rodgers and Glenzinger were each liable by reason of the manner in which they operated the respective cars, but that Mrs. Paugh was liable only because of the negligence of her driver, Glenzinger, on the principle of respondeat superior. Mrs. Paugh was not present at the time of the accident and there was no claim or proof that she was responsible to the plaintiff in any other capacity or on any other account than that which arose by reason of the relation of master and servant and because of the negligence of her servant. While some question is raised as to whether the record discloses that the driver acted as an employee or as a member of the household of Mrs. Paugh the only claim or proof of liability on her part was by reason of negligence imputed to her as master, as a matter of law.

"The doctrine of contribution rests on the principle that, when the parties stand in aequali jure, the law requires equality, which is equity, and one of them shall not be obliged to bear a common burden in ease of the rest . . . . [It] comes from the application of principles of equity to the condition in which the parties are found in consequence of some of them, as between themselves, having done more than their share in performing a common obligation": 13 C. J. 821. "Contribution is bottomed and fixed on general principles of natural justice, and does not spring from contract": Dering v. Earl of Winchelsea, 1 Cox 318, cited with approval in Armstrong County v. Clarion County, 66 Pa. 218, 221. As expressed by Judge Linn, now Mr. Justice Linn, in Greenwald v. Weinberg, 102 Pa.Super. 485, 488, 157 A. 351, "their joint relation imposed equality of burden". One debtor may not recover from his co-obligors until he has paid more than his share and then only the excess he has paid: 13 C. J. 825. Where contribution is allowed among joint tort feasors after judgment recovered against them, the allowance is based not on the tort but arises by reason of an implied engagement of each to contribute on an equitable basis a sum sufficient to satisfy the judgment and to bear the common burden as reason and natural justice dictate. Where the joint judgment debtors are all in the same class no difficulty is encountered...