Thomas v. Malco Refineries, 4849.

CourtUnited States Courts of Appeals. United States Court of Appeals (10th Circuit)
Writing for the CourtPHILLIPS, , and HUXMAN and PICKETT, Circuit
Citation214 F.2d 884
Docket NumberNo. 4849.,4849.
Decision Date03 August 1954

214 F.2d 884 (1954)


No. 4849.

United States Court of Appeals Tenth Circuit.

August 3, 1954.

214 F.2d 885

William R. Federici, Santa Fe, N. M. (Seth & Montgomery, Santa Fe, N. M., were with him on the brief), for appellant.

William W. Gilbert, Santa Fe, N. M. (Carl H. Gilbert and L. C. White, Santa Fe, N. M., were with him on the brief), for appellee.

Before PHILLIPS, Chief Judge, and HUXMAN and PICKETT, Circuit Judges.

PHILLIPS, Chief Judge.

The plaintiffs below, who are not involved in this appeal, recovered judgment against Thomas and Malco Refineries, Inc.,1 for damages suffered as the result of a highway collision between an automobile in which the plaintiffs were riding and a tractor-trailer leased to Malco and being driven by Thomas, Malco's employee.

The trial court awarded judgment for indemnity to Malco on its cross-complaint against Thomas, but provided therein that execution upon the judgment in favor of Malco should issue only on the payment by Malco of all or part of the judgment in favor of the plaintiffs, and then only for the amount so paid by Malco. From that judgment, Thomas has appealed.

The evidence clearly established that Malco itself was not guilty of any negligence and was liable to plaintiffs below only by reason of the doctrine of respondeat superior.

The primary question presented is whether or not the right to indemnity at common law in New Mexico was abrogated by the enactment of the Uniform Contribution Among Tortfeasors Act, Ch. 121, p. 208, N.M.S.L. 1947, 1941 N. M.Stat.Ann. §§ 21-118 to 21-125, 1951 Supp. to Vol. 2.2

Sec. 5, Ch. 61, N.M.S.L. 1882, 1941 N.M.Stat.Ann. § 21-110, which was superseded by the Uniform Act, provided:

"Liability of defendants for judgment in tort action — Contribution. — Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment in the same manner and to the same extent as defendants in a judgment in an action founded on a contract."

Section 1 of the Uniform Act defines "joint tortfeasors" as "two or more persons jointly or severally liable in tort for the same injury to person or property * * *."

Section 2 of the Uniform Act provides that contribution shall exist among joint tortfeasors. Section 3 thereof provides that the recovery of a judgment by the injured person against one joint tortfeasor shall not discharge the other joint tortfeasor. Section 4 thereof provides that a release by the injured person of one joint tortfeasor shall not discharge the other tortfeasors, unless the release so provides.

Section 6 of the Uniform Act expressly provides that "This act does not impair any right of indemnity under existing law."

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    ...file a cross-claim against the township for contract indemnification pursuant to Rule 13(g). See, e.g., Thomas v. Malco Refineries, Inc., 214 F.2d 884, 886 (10th Cir.1954); President & Directors of Georgetown College v. Madden, 505 F.Supp. 557, 593-95 (D.Md.1980), aff'd in part and dismisse......
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    ...Drilling Co. v. Halliburton Oil Well Cement Cementing Co., 10 Cir., 1954, 215 F. 2d 368; Thomas v. Malco Refineries, Inc., 10 Cir., 1954, 214 F.2d 884; Lee Way Motor Freight v. Yellow Transit Fr. Lines, 10 Cir., 1957, 251 F.2d "Concentration in the arguments on the active-passive idea must ......
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    ...127 Ill.App.3d 767, 83 Ill.Dec. 46, 469 N.E.2d 653, with Page 500 [99 Ill.Dec. 119] Thomas v. Malco Refineries, Inc. (10th Cir.1954), 214 F.2d 884.) But the answer to this appeal and the future of active-passive indemnity is found in this court's opinion in Alvis v. Ribar (1981), 85 Ill.2d ......
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