Reynolds v. Southern Railway Company

• Citation: 320 F. Supp. 1141
• Decision Date: 30 September 1969
• Docket Number: Civ. A. No. 11849.
• Parties: Lanira REYNOLDS, as widow and permanent administratrix of the estate of Jack Wilton Reynolds, Jr., deceased, Plaintiff, v. SOUTHERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff, v. Carl F. LARSEN, Jr., d/b/a Southeastern Wood Products Company, Third-Party Defendant.
• Court: U.S. District Court — Northern District of Georgia

320 F. Supp. 1141

Lanira REYNOLDS, as widow and permanent administratrix of the estate of Jack Wilton Reynolds, Jr., deceased, Plaintiff, v. SOUTHERN RAILWAY COMPANY, Defendant and Third-Party Plaintiff, v. Carl F. LARSEN, Jr., d/b/a Southeastern Wood Products Company, Third-Party Defendant.

Civ. A. No. 11849.

United States District Court, N. D. Georgia, Atlanta Division.

September 30, 1969.

Paul R. Koehler, Raymond Alhadeff, Atlanta, Ga., for plaintiff.

Greene, Buckley, DeRieux, Moore & Jones, Atlanta, Ga., for Southern Railway.

Ross & Finch, Atlanta, Ga., for Carl F. Larsen, Jr., and Southeastern Wood Products Co.

ORDER

EDENFIELD, District Judge.

This case comes to us on the third-party defendant's motion to dismiss defendant's third-party complaint against it. Decedent, on whose behalf plaintiff sues, was an employee of the defendant allegedly acting within the scope of his employment, at the time he was crushed to death between a boxcar and a retaining wall. Plaintiff alleged negligence by Southern Railway as to its cars, engines, appliances, machinery, track roadbed, wharves, location of tracks, retaining wall, and breach of railroad safety regulations. Plaintiff was presumably covered by the Federal Employers' Liability Act, 45 U.S.C. § 51. On April 14, 1969, the plaintiff and defendant settled their suit and Southern allowed a consent verdict filed against it by the court in the amount agreed upon by the parties. Before settlement, defendant had filed a third-party complaint alleging that negligence of the third-party defendant in locating, constructing and maintaining its buildings, wharves, and retaining walls was a contributing cause to plaintiff's husband's death. Defendant seeks contribution from the third-party defendant.

There are two central issues in considering the motion to dismiss the third-party complaint. First, we must decide if contribution between tortfeasors is permissible when the defendant's liability is based on the Federal Employers' Liability Act (FELA). Second, we must consider if contribution against the third-party defendant is permissible when the initial action between the plaintiff and defendant has been settled pursuant to a consent judgment.

Contribution is allowable in FELA cases, even though the liability of the defendant is statutory and that of the alleged joint tortfeasor may—as here—arise from common law. Contribution is dependent upon common liability but the mere fact that liability arises from different sources does not preclude joint responsibility. As the Eighth Circuit put it in Chicago, R. I. & P. R. R. v. Chicago & N. W. Ry., 280 F.2d 110, 115 (8th Cir. 1960), cert. denied, 364 U.S. 931, 81 S.Ct. 378, 5 L.Ed.2d 364:

"The essence of the action for contribution is common liability to the injured person, not liability for common negligence, or similar negligence or like negligence. Simply stated, common liability means that each party, by reason of his wrongful act, is made legally liable to respond in damages to the injured party."

While it is true that under FELA the contributory negligence of the employee only mitigates damages, but may bar common law recovery against the third-party defendant, this in itself is insufficient to destroy the requisite common liability required for contribution. Zontelli Bros. v. Northern Pacific Ry., 263 F.2d 194 (8th Cir. 1959). The is particularly true in Georgia, a comparative negligence state. Swift & Co. v. Phelps, 273 F.2d 551 (6th Cir. 1960). Even in states generally prohibiting contribution between tortfeasors, contribution has long been permitted in cases where the employer-railroad, under FELA, has been held liable to its employee. Annot., 19 A.L.R.3d 928 (1968).

Thus, almost without exception, courts have uniformly permitted a defendant-railroad, such as Southern Railway, to receive contribution after an FELA payment. Chicago & N. W. Ry. v. Minnesota Transfer Ry., 371 F.2d 129 (8th Cir. 1967); Chicago, R. I. & P. R. R., supra; Patterson v. Pennsylvania Ry., 197 F.2d 252 (2d Cir. 1952); Gulf, Mobile & Ohio R. R. v. Arthur Dixon Transfer Co., 343 Ill.App. 148, 98 N.E.2d 782 (1951); Annot., 19 A.L.R.3d 928 at § 2. While the Fifth Circuit has stated to the contrary in Fort Worth & Denver Ry. v. Threadgill, 228 F.2d 307 (5th Cir. 1955), which stands in almost solitary isolation on this issue, 19 A.L.R.3d 928 at § 2, that case was based in large measure on the plaintiff's proven contributory negligence. It is most frequently cited for the contributory negligence proposition. See, e. g., Panichella v. Pennsylvania Ry., 167 F.Supp. 345, 351 (W.D. Pa.1958), rev'd on other grounds, 268 F.2d 72 (3d Cir. 1959), cert. denied, 361 U.S. 932, 80 S.Ct. 370, 4 L.Ed.2d 353; Kennedy v. Pennsylvania Ry., 282 F.2d 705 (3d Cir. 1960). Only in a footnote did the Court state that contribution should also be denied on the ground that common liability did not arise when one tortfeasor's liability depended upon FELA and the other's on common law. See, also, Sleeman v. Chesapeake & Ohio R.R., 290 F.Supp. 830, 834 (W.D.Mich. 1968). As one commentator put it:

"Only one case Fort Worth, supra within the scope of this annotation has specifically said that there is no common liability between a tortfeasor whose liability is based upon the Federal Employers' Liability Act and one whose liability is based upon common law. * * * However, this statement was made in a footnote at the end of the decision and was not an integral part of the opinion." 19 A.L. R.3d 928, 932, and n. 12 on 932.

Moreover, the Fifth Circuit, in its pithy dictum in Fort Worth, supra, discussed none of the cases which permitted contribution. Likewise, a long series of cases have allowed indemnity by railroad employers in FELA cases, a means of recovery allied to contribution. Booth-Kelly Lumber Co. v. Southern Pacific Co., 183 F.2d 902 (9th Cir. 1950); Blair v. Cleveland Twist Drill Co., 197 F.2d 842 (7th Cir. 1952); Waylander-Peterson Co. v. Great Northern Ry., 201 F.2d 408 (8th Cir. 1953).

We agree—and feel that the Fifth Circuit would also—that:

"A general prerequisite for the recovery of contribution by the railroad from the third party is that there must be common liability to the injured person between the joint tort-feasors. This apparently does not mean that the source of liability— whether it be statutory or common law—must be the same but means, simply stated, that each party, because of its wrongful act, is made legally liable to respond in damages to the injured party." 19 A.L.R.3d 928, 931.

A casual dictum in one Fifth Circuit case should not turn us from the overwhelming sentiment that common liability for purposes of contribution arises if each tortfeasor is legally liable to respond in damages to the injured party. We are also impressed by the fact that the third-party defendant here has not based its motion to dismiss on a lack of common liability, nor even argued the point.

The second issue in this case is the extent to which contribution is affected by a settlement of the main action between the defendant and plaintiff. It is generally held, absent a contrary state provision, that one who settles a case without a final jury judgment against it, may recover contribution. Prosser, Torts 3d, Ch. 8, § 47; Annot., 6 A.L.R.2d 1307 (1966); Zontelli Bros., supra; Chicago & N. W. Ry., supra; Chicago, R. I. & P. R. R., supra.

Nothing in Georgia Code § 105-2012, dealing with contribution compels a contrary decision. That statute does not require that a judgment must be entered adjudging the defendant liable before contribution may be pursued. In full, § 105-2012 provides that:

"(1) Where the tortious act does not involve moral turpitude, contribution among several trespassers may be enforced just as if they had been jointly sued.

"(2) If judgment is entered jointly against several trespassers, and is paid off by one, the others shall be liable to him for contribution."

Prior to the 1966 amendment adding section (1), contribution in Georgia was allowed only if the defendants were jointly sued, a judgment entered against both and payment made by only one, in excess of his pro rata share. The purpose of the 1966 amendment, see Acts 1966, p. 433, was to change the common law rule as previously codified in § 105-2012 by inserting section (1) and leaving the old language as section (2). There is no reason to think that invocation of the new language is dependent on an actual judgment. Nothing in the actual wording of (1) of § 105-2012 compels such a reading and we should not struggle to find such a meaning. The statement that contribution should be allowed "as if they had been jointly sued" should not be interpreted to mean that all of the old rules inherent in the language of (2) should be incorporated into a section which was meant to be a departure from past practice. Settlements would be discouraged in a vast number of cases were such...