Swigert v. Welk
| Decision Date | 10 June 1957 |
| Docket Number | No. 175,175 |
| Citation | 133 A.2d 428,213 Md. 613 |
| Parties | Hary R. SWIGERT v. John E. WELK and Evelyn Newport. |
| Court | Maryland Court of Appeals |
Wendell D. Allen, Baltimore (Foster H. Fanseen and Allen, Burch & Allen, Baltimore, on the brief), for appellant.
Grafton D. Rogers, Baltimore (William C. Holland, Baltimore, on the brief), for John E. Welk.
No brief--no appearance for Newport
Before BRUNE, C. J., and COLLINS, HENDERSON, HAMMOND and PRESCOTT, JJ.
This is an appeal involving the 1941 Uniform Contribution Among Tortfeasors Act, Code 1951, Art. 50, § 20 et seq. (hereafter referred to as the 'Uniform Act'), and other applicable laws of Maryland, from a judgment of the Superior Court of Baltimore City, which granted a summary judgment for costs of suit in favor of a third party defendant in a tort action.
Evelyn Newport sued Harry R. Swigert for damages resulting from a two car collision at the intersection of Arunah Avenue and Longwood Street in Baltimore City. The declaration alleged the plaintiff was riding in the defendant's car going west on Arunah Avenue, that Swigert's car started a short distance east of Longwood Street at 11:00 P.M. and that Swigert failed to put his lights on. Third party defendant Welk was operating a car northerly on Longwood Street at the intersection. Swigert impleaded Welk as a third party defendant for contribution. Swigert filed a general issue plea to Newport's declaration, and third party defendant Welk filed two pleas to the third party complaint for contribution, a general issue plea and a special plea of release with a copy of the release attached. There then followed a series of motions, demurrers and other pleadings unnecessary to be set forth in detail for the decision in this case. During the course of pleading, the plaintiff, Newport, filed an 'Admission of Facts', and also a confirmatory release, which Swigert moved to strike from the record. Swigert finally joined issue on the rejoinder filed by Welk to Swigert's amended replication, and Welk filed a motion for a summary judgment. The trial Court granted Welk's motion for a summary judgment, and it is from that judgment that this appeal has been taken.
The trial Court filed a written opinion in ruling on the motion for a summary judgment, and in it he stated his reasons for his ruling, and 'ventured' certain suggestions as to the future course of the trial. We are earnestly requested under Rule 885 of the Maryland Rules to pass upon all of the grounds given by the trial Judge for his decision, the suggestions made by him and also the prospective procedure at the future trial, as well as the admissibility vel non of possible evidence that may be offered at that time. Without making any present observations on the construction to be placed on Rule 885, it is certain former Rule 9 of the Rules of the Court of Appeals (1955 Ed.), in force at the time this appeal was taken, did not anticipate this broad coverage. While much credit must be given to counsel for the care and thoroughness with which the case was prepared and presented, we feel constrained to render our decision in this case as we would in any other, under like circumstances.
We think the pivotal question to be determined by us was whether the trial Judge was correct in granting the summary judgment, and this includes the subsidiary inquiry as to whether or not it was proper for him to refuse to strike from the file the confirmatory release. We shall limit ourselves to these inquiries, and give the reasons for our conclusions.
The minor dispute will be settled first. When Welk pleaded to the third party complaint, he included in his second plea a resume of a release obtained by him from the plaintiff, Newport, and attached thereto a copy of the release. This release was defective in form because in a blank space, in which Welk's name should have been inserted, there was actually inserted the amount of the consideration, i. e., $3,500. With Welk's rejoinder to the amended replication there was filed, and referred to therein, an 'Admission of Facts' signed by Newport's attorney in which there is stated her intention when she executed the release and her consent to have it corrected. It is not necessary to pass upon the legal effect of the original release and the 'Admission of Facts' because the plaintiff, Newport, filed in the case another release, consisting of the same printed form as the original, in which the blank space was properly filled in. It identifies the automobile by date and location and is signed by Newport. This is the release Swigert moved to strike from the file on the ground that he had acquired vested rights to obtain contribution from Welk under the first release, which could not thereafter be defeated by action between Welk and Newport. The simple answer to this argument is that the second release was a mere correction of a clerical error in the first; and the second release did not change the amount of the original consideration or in any material manner alter the intended legal effect of the first. We hold the trial Court was correct in refusing to strike this release from the file of the case.
We proceed to a consideration of the ruling on the motion for a summary judgment. Part IV, Rule I, of the former Gen. Rules of Prac. and Proc. (Now Rule 610 of the Maryland Rules in slightly different form) provided: 'In any proceeding at law or in equity, a party asserting a claim * * or a party against whom a claim is asserted, may at any time make a motion for a summary judgment in his favor * * * on the ground that there is no genuine dispute as to any material fact and that he is entitled to judgment as a matter of law. * * *' As there is no dispute concerning the facts, it remains for us to determine whether Welk was entitled to judgment as a matter of law.
Welk contends the release purchased by him from the plaintiff, and filed in the case, fully complies with sec. 24 () and is a complete bar to the cause of action alleged in the third party complaint. Swigert argues that because of the 'latent right of contribution on behalf of Swigert against Welk', and the effect that Welk's presence in the case may have upon the amount of any verdict against him in favor of the plaintiff, it is necessary that Welk remain as a party for the trial of the case.
We hold the trial Judge was in error when he granted the summary judgment, which released Welk from further participation in the case. Article 50 of the Maryland Code (1951) reads, in part, as follows:
'(a) The right of contribution exists among joint tortfeasors.
'(b) 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.
* * *
* * *
(Italics supplied.)
The release contains these paragraphs:
'It is understood and agreed that the payment of said amount by the said Payer (s) is not to be construed as an admission of liability on the part of said Payer (s), but that said payment is in compromise and settlement of my (our) claim which is not admitted but is denied and disputed by said Payer (s); * * *.
'I/we further agree that all claims or damages recoverable by me/us against all other persons, firms or corporations, jointly or severally liable to me/us in tort for my/our said damages, are hereby reduced, to the extent of the statutory pro rata share of said John E. Welk under the Uniform Contribution Among Tortfeasors Act, of all such damages so recoverable by me/us against all such other joint tortfeasors.'
There is no contention that it was not obtained 'before the right of the other tortfeasor to secure a money judgment for contribution' had accrued, and there was thus included verbatim the other requirement or condition of sec. 24. It is clear the release fully complies with this section, and is also within the provisions of sec. 23, if Welk is a tortfeasor. This, however, is denied in the release. Swigert and Welk both admit the release was duly...
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In re Joint E. & S. Dist. Asbestos Litigation
...not automatically result in a verdict reduction, absent a court determination that the release is a tortfeasor. Swigert v. Welk, 213 Md. 613, 618, 133 A.2d 428, 430 (1957). A plaintiff and settling party may stipulate in the release to the settling party's joint tortfeasor status, in which ......
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Jacobs v. Flynn
..."[t]he [A]ct does not specify the test of liability. Clearly, something short of an actual judgment will suffice." Swigert v. Welk, 213 Md. 613, 619, 133 A.2d 428 (1957). The fact, however, that a party has been sued or threatened with suit is not enough to establish joint tortfeasor status......
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Anchor Packing Co. v. Grimshaw
...that in order for someone to be adjudicated a joint tort-feasor, he, she, or it must be party to the adjudication. Swigert v. Welk, 213 Md. 613, 622, 133 A.2d 428 (1957) ("It would create a somewhat incongruous procedural situation to have a party to a case completely dismissed and leave th......
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Porter Hayden Co. v. Bullinger, 56
...With respect to the method by which one may be considered a joint tort-feasor under the Act, this Court in Swigert v. Welk, 213 Md. 613, 619, 133 A.2d 428, 431 (1957), stated: "The act does not specify the test of liability. Clearly, something short of an actual judgment will suffice; we th......