Perchell v. District of Columbia

• Decision Date: 14 May 1971
• Docket Number: No. 24187.,24187.
• Citation: 444 F.2d 997
• Parties: O. C. PERCHELL et al. v. DISTRICT OF COLUMBIA, Appellant.
• Court: U.S. Court of Appeals — District of Columbia Circuit

444 F.2d 997 (1971)

O. C. PERCHELL et al. v. DISTRICT OF COLUMBIA, Appellant.

No. 24187.

United States Court of Appeals, District of Columbia Circuit.

Argued December 15, 1970.

Decided May 14, 1971.

Mr. Ted D. Kuemmerling, Asst. Corporation Counsel, with whom Messrs. Hubert B. Pair, Acting Corporation Counsel at the time the brief was filed, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellant. Mr. Charles T. Duncan, Corporation Counsel at the time the record was filed, also entered an appearance for appellant.

Mr. Edward J. Gorman, Jr., Washington, D. C., with whom Mr. Lawrence Z. Bulman, Washington, D. C., was on the brief, for appellees.

Before FAHY, Senior Circuit Judge, and McGOWAN and ROBINSON, Circuit Judges.

FAHY, Senior Circuit Judge:

The question presented on this appeal is whether the District Court properly dismissed the counterclaim of the District of Columbia for contribution against Mr. Perchell, a co-plaintiff with his two minor children in a tort action against the District.¹ Mr. Perchell was denied recovery in the main action against the District "because of his contributory negligence," while his children were awarded judgments of $27,000 and $9,000 against the District. The District was denied contribution against Mr. Perchell, however, apparently on the ground of his immunity in tort to his children. Dennis v. Walker, 284 F.Supp. 413 (D.D.C.1968). For reasons now stated we reinstate the District's counterclaim against Mr. Perchell.

The problem is one in equity. Where tortfeasor B is liable to A for damages, and tortfeasor C is jointly negligent for the tort but not jointly liable because of parental immunity, it has been held that B may not obtain contribution from C. Dennis v. Walker, supra, following Yellow Cab Co. v. Dreslin, 86 U.S.App.D.C. 327, 181 F.2d 626 (1950), which involved the same situation except it was decided under the doctrine of marital immunity rather than the doctrine of parental immunity. Were we to accept the full scope of the doctrine of parental immunity, as did the trial court, and were that doctrine to rule this case, it would follow from Dennis and Yellow Cab Co. that the District Court correctly held that the District of Columbia could not obtain from Mr. Perchell contribution on the judgment rendered against the District in favor of Mr. Perchell's minor children.

In some situations, however, equity may intervene to reduce by one-half any judgment of A against B, under the principle of Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361 (1968), and Martello v. Hawley, 112 U. S.App.D.C. 129, 300 F.2d 721 (1962). In Murray the court disallowed defendant's third-party claim for contribution against the United States on the ground that the Government's previously determined liability to the plaintiff under the Federal Employees' Compensation Act terminated its common law liability to the plaintiff and thereby to the defendant for contribution. In so holding, however, the court said:

Any inequity residing in the denial of contribution * * * is mitigated if not eliminated by our rule in Martello v. Hawley, 112 U.S.App.D.C. 129, 300 F.2d 721 (1962). Martello holds that where one joint tortfeasor causing injury compromises the claim, the other tortfeasor, though unable to obtain contribution because the settling tortfeasor had "bought his peace," is nonetheless protected by having his tort judgment reduced by one-half, on the theory that one-half of the claim was sold by the victim when he executed the settlement.

Murray v. United States, supra, 132 U. S.App.D.C. at 95, 405 F.2d at 1365.

The equities relied on in Murray and Martello for reducing the judgments in those cases...