Smith v. Whitmore

• Decision Date: 06 October 1959
• Docket Number: No. 12867.,12867.
• Parties: George SMITH, Plaintiff, v. Max C. WHITMORE, Defendant and Third-Party Plaintiff, Appellee (Pervis Lee PUE, Jr., Third-Party Defendant, Appellant).
• Court: U.S. Court of Appeals — Third Circuit

270 F.2d 741 (1959)

George SMITH, Plaintiff, v. Max C. WHITMORE, Defendant and Third-Party Plaintiff, Appellee (Pervis Lee PUE, Jr., Third-Party Defendant, Appellant).

No. 12867.

United States Court of Appeals Third Circuit.

Argued June 4, 1959.

Decided October 6, 1959.

Tom P. Monteverde, Philadelphia, Pa. (Lynwood F. Blount, Philadelphia, Pa., Schnader, Harrison, Segal & Lewis, Josephine H. Klein, Philadelphia, Pa., on the brief), for third-party defendant, appellant.

Elston C. Cole, Philadelphia, Pa. (Charles Wright, Philadelphia, Pa., on the brief), for plaintiff.

Before GOODRICH, KALODNER and HASTIE, Circuit Judges.

KALODNER, Circuit Judge.

This appeal involves the issue of application of the Federal Rules of Civil Procedure, 28 U.S.C., to the provisions of the Uniform Contribution Among Joint Tortfeasors Act in effect in Pennsylvania ("Uniform Act").¹

Plaintiff George Smith instituted suit in the United States District Court for the Eastern District of Pennsylvania² against Max C. Whitmore for recovery of damages for personal injuries arising out of an automobile accident which occurred in Philadelphia, Pennsylvania.³

Pursuant to Rule 14 of the Federal Rules, Whitmore impleaded Pervis Lee Pue, Jr. as a third-party defendant⁴ seeking contribution in the event that he and Pue were found negligent. Plaintiff never amended his complaint to include Pue as a party defendant. The jury returned a general verdict for Smith against Whitmore in the sum of $19,500 which was never appealed. In returning its general verdict the jury, in response to an interrogatory, found that Pue was "guilty of negligence which was a substantial factor in causing the accident".

The District Court entered the following judgment:

"And Now, to wit: January 13, 1959, in accordance with the verdict and the jury\'s answer to an interrogatory, it is

"Ordered that Judgment be and the same is hereby entered in favor of Plaintiff, George Smith, in the sum of Nineteen Thousand Five Hundred and 00/100 ($19,500.00) Dollars, and against the Defendant Max C. Whitmore, together with costs, and it is further

"Ordered that judgment be and the same is hereby entered in favor of Third-party Plaintiff, Max C. Whitmore and against Third-party Defendant, Pervis Lee Pue, Jr., in the sum of Nine Thousand Seven Hundred and Fifty and 00/100 ($9750.00) Dollars, together with costs."

On January 22, 1959, third-party defendant moved, pursuant to Rule 59(e) of the Federal Rules, for an Order amending the foregoing Judgment to read as follows:

"Judgment in favor of plaintiff and against defendant in the sum of Nineteen Thousand Five Hundred ($19,500.00) Dollars and in favor of third-party plaintiff and against third-party defendant for contribution."

The following Order was thereafter entered by the District Court:

"And Now this 29th day of January, 1959, an Order is entered amending the Judgment entered on January 13, 1959, to read Judgment in favor of plaintiff, George Smith, and against defendant, Max C. Whitmore, in the sum of $19,500.00, and in favor of third-party plaintiff and against third-party defendant in the sum of $9,750.00, for contribution."

It is from this money judgment of $9,750 against him that the third-party defendant has appealed. He contends that it is erroneous in that the Uniform Act precludes the entry of a money judgment for contribution until such time as the third-party plaintiff has paid more than his pro rata share of the common liability and cites in support Section 2 of the Act which provides as follows:

"(1) The right of contribution exists among joint tortfeasors; (2) A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof. * * *" 12 P.S. § 2083.

In reply, the third-party plaintiff argues in substance that although the Uniform Act creates a substantive right to contribution among tortfeasors its further provision that a joint tortfeasor is not entitled to a money judgment for contribution until he has paid more than his pro rata share of the judgment against him is merely "procedural" and that while a federal court is required to apply the substantive law of the states⁵ it is not required to apply its procedural rules and will apply instead the Federal Rules of Civil Procedure. On the latter score, says the third-party plaintiff, the judgment in the instant case is valid by reason of Rule 14(a) and 49(b) of the Federal Rules, since the third-party defendant was impleaded under the provisions of the former and Rule 49(b) controls where a general verdict is accompanied by interrogatories, as here.

We have not had occasion, heretofore, to rule upon the precise issue presented by this appeal. We have, however, held that "Contribution is a right arising under the substantive law of the States" and applied the holding to the Pennsylvania Act of June 24, 1939, P.L. 1075, 12 P.S. § 2081, the predecessor statute to the Uniform Act under consideration. Howey v. Yellow Cab Co., 3 Cir., 1950, 181 F.2d 967, 972, affirmed 1951, sub nom. United States v. Yellow Cab Co., 340 U.S. 543, 71 S.Ct. 399, 95 L.Ed. 523. Earlier in Sheppard v. Atlantic States Gas Co., 3 Cir., 1948, 167 F.2d 841, 844-845, we held with respect to the same Act that it was "controlling" in a joint tortfeasors contribution action. Again, in Gartner v. Lombard Bros., 3 Cir., 1952, 197 F.2d 53, 55, we stated with respect to the 1939 statute that "It is Pennsylvania law which governs here." In the cases cited the third-party defendant was impleaded by the defendant (third-party plaintiff) under Rule 14(a).

The sum of the third-party plaintiff's contention is that the Uniform Act has a "split personality"; it is "substantive" as far as it grants him the right of contribution against his joint tortfeasor, but "procedural" in so far as it conditions his right to a money judgment for contribution "until he has by payment discharged the common liability or has paid more than his pro rata share thereof. * * *"

We cannot subscribe to that contention.

By the clear terms of the Uniform Act the right of contribution and the conditions imposed as to the accrual of the right to a money judgment for contribution are substantive rights. Subsection 1 of Section 2 of the Uniform Act establishes the "right of contribution" among tortfeasors; subsection 2 of Section 2 makes payment of more than the pro rata share of the common liability a condition precedent to the accrual of the right to a money judgment for contribution.

The case books abound with decisions in accord with our view.

Thus, in Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 1954, 14 N.J. 372, 102 A.2d 587, at page 591, the Supreme Court of New Jersey, with respect to a similar provision of the New Jersey contribution statute, N.J.S.A. 2A:53A-1 et seq., said:

"The statutory right of action for contribution accrues only on the payment by a joint tortfeasor of a money judgment recovered against him for the injurious consequences of the wrong * * *. The payment beyond the payor\'s pro rata share is the act which gives rise to the statutory right of restitution."

and at pages 593-594 of 102 A.2d:

"Joint liability is not enough; payment is of the essence of the right of action, not only under the statute but also at common law in cases where contribution may be had, De Paris v. Wilmington Trust Co., 7 Boyce 178, 30 Del. 178, 104 A. 691, 1 A.L.R. 1352 (Sup.Ct.1918) * * *." (Emphasis supplied.)

To the same effect see Sattelberger v. Telep, 1954, 14 N.J. 353, 102 A.2d 577; Mijon v. Acquaire, 1958, 51 N.J.Super. 426, 144 A.2d 161, certification denied, 1958, 28 N.J. 146, 145 A.2d 357.

The National Conference of Commissioners on Uniform State Laws in a Note to the subsection of the Uniform Act precluding a money judgment until the third-party plaintiff has paid more than his pro-rata share of the judgment, said:

"This Subsection Section 2, Subsection 2 merely states the universally recognized condition required for obtaining a money judgment for contribution. The Act in no way changes this requirement for stating a `cause of action\' for contribution; and the subsequent Sections permitting cross-litigation in the injured person\'s action, before these conditions exist, of some of the issues involved in securing contribution are in no way in conflict with the provisions of the Subsection."

The third-party plaintiff's contention that Rules 14 and 49 of the Federal Rules permit the entry of the judgment at issue is utterly without merit.

As was pointed out in D'Onofrio Construction Company v. Recon Company, 1 Cir., 1958, 255 F.2d 904, 906, Rule 14 cannot be used in a contribution proceeding "* * * to enhance the substantive rights of the original defendant over what is given by state law." To the same effect see Linkenhoger v. Owens, 5 Cir., 1950, 181 F.2d 97, at page 99, where it was said:

"The command of Erie R. Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188, 114 A.L.R. 1487, is that the ultimate results reached in litigation in the Federal Courts predicated upon causes of action arising from the State law, must be the same as if the litigation had been conducted in the State courts. While the Federal Courts should properly employ its own rules of procedure to secure the just, efficient and prompt determination of all claims inherent in any litigation before it, nevertheless the ultimate results reached must be such as accord with the substantive jurisprudence of the State of the forum."

In Brown v. Cranston, 2 Cir., 1942, 132 F.2d 631, 633-634, 148 A.L.R. 1178 certiorari denied sub nom. Cranston v. Thompson, 1943, 319 U.S. 741, 63 S.Ct. 1028, 87 L.Ed. 1698 it was held in a contribution action that Rule 14 cannot be construed "* * * as to give the defendant a recovery which could not be obtained through any remedy available in the New York State Courts."

Professor Moore in his...