Travelers Indem. Co. v. Trowbridge

• Decision Date: 08 January 1975
• Docket Number: No. 74-10,74-10
• Citation: 70 O.O.2d 6,321 N.E.2d 787,41 Ohio St.2d 11
• Parties: , 70 O.O.2d 6 TRAVELERS INDEMNITY CO., Appellant, v. TROWBRIDGE, Appellee.
• Court: Ohio Supreme Court

Page 11

41 Ohio St.2d 11

321 N.E.2d 787, 70 O.O.2d 6

TRAVELERS INDEMNITY CO., Appellant, v. TROWBRIDGE, Appellee.

No. 74-10.

Supreme Court of Ohio.

Jan. 8, 1975.

Syllabus by the Court

1. Where the negligence of a tortfeasor in causing bodily injury to a person is a proximate cause of further injury or of aggravation of the original injury, caused by the subsequent independent negligence of a physician in treating the original injury, and the original tortfeasor responds in damages to the injured party for such injuries, the original tortfeasor has a right to indemnity from the treating physician as to that portion of the damages due directly to the independent negligence of the physician.

2. Contribution, when it exists, is the right of a person who has been compelled to pay what another should have paid in part to require partial (usually proportionate) reimbursement and arises from principles of equity and natural justice. Indemnity, on the other hand, arises from contract, express or implied, and is the right of a person, who has been compelled to pay what another should have paid, to require complete reimbursement.

Appellant, Travelers Indemnity Company, is the insurer of Republic Steel Corporation (Republic) and is subrogated to its rights. In 1965, Republic entered into a contract with Industrial Valves, Inc., to repair an accumulator. While these repairs were being made, Walter Dlusky, an employee of Industrial Valves, sustained injuries as a result of an explosion caused by the negligence of Republic.

Appellee, Dr. William V. Trowbridge, treated Dlusky for the injury to his cervical spine caused by the explosion. As part of this treatment, in March 1966, appellee performed an operation known as an anterior cervical intervertebral fusion upon Dlusky. During the performance of this operation, Dlusky suffered a contusion of the spinal cord in the cervical region, resulting in paralysis of his lower extremities and loss of bowel and bladder control. Appellant contends that this was a result of appellee's performing the operation negligently in tapping a bone plug into Dlusky's spinal cord.

Dlusky filed a lawsuit against Republic, which was settled, resulting in a payment by appellant to Dlusky of $290,000.

Thereafter, in 1968, appellant filed the present action, in the Court of Common Pleas, seeking indemnity from appellee for that portion of the settlement attributable solely to the alleged independent negligent acts of appellee. A demurrer to the petition was overruled in 1969. An answer and reply were duly filed, and the case set for trial. A few weeks prior to the scheduled trial date, appellee filed a motion for judgment on the pleadings, which the trial court granted and entered final judgment for appellee on December 15, 1972. Travelers Indemnity Co. v. Trowbridge (1972), 38 Ohio Misc. 55, 311 N.E.2d 901.

Appellant then filed a notice of appeal, and, at the same time, a motion in the trial court for an order permitting perpetuation of certain testimony pending appeal, which the trial court granted in part and denied in part.

The Court of Appeals found the three assignments of error raised by appellant to be without merit, and affirmed the judgment of the trial court.

The cause is now before this court pursuant to allowance of a motion to certify the record.

Weston, Hurd, Fallon, Sullivan & Paisley, Frank S. Hurd and John M. Baker, Cleveland, for appellant.

Baker, Hostetler & Patterson, Dwight B. Buss and Parker M. Orr, Cleveland, for appellee.

WHITESIDE, Justice.

Although appellant has raised four propositions of law, the basic issue is whether a tortfeasor responding in damages resulting from the negligent treatment by a physician of the original injury caused by the negligence of the tortfeasor has a right to indemnity from such physician for that portion of the damages due directly to the negligence of the physician.

Neither party herein contests the correctness or applicability of the holding in Tanner v. Espey (1934), 128 Ohio St. 82, 190 N.E. 229, that the negligence of a tortfeasor in causing the original injury is the proximate cause of damages flowing from the subsequent negligent or unskilled treatment thereof by a physician and that the original wrongdoer is liable therefor. The rationale behind the holding that the negligence of the original wrongdoer is a proximate cause of the injury resulting from the intervening negligence of the physician is that the intervening cause was set in motion by the negligence of the original wrongdoer by imposing upon the injured party the necessity of employing a physician, resulting in the negligent treatment. Loeser v. Humphrey (1884), 41 Ohio St. 378. Cf. Mouse v. Central Savings & Trust Co. (1929), 120 Ohio St. 599, 167 N.E. 868, and Taylor v. Webster (1967), 12 Ohio St.2d 53, 231 N.E.2d 870.

In this case, appellant seeks indemnification rather than contribution from appellee. Although the two forms of reimbursement are similar, there is a distinct difference. Contribution, when it exists, is the right of a person who has been compelled to pay what another should pay in part to require partial (usually proportionate) reimbursement and arises from principles of equity and natural justice. Robinson v. Boyd (1899), 60 Ohio St. 57, at page 65, 53 N.E. 494. Indemnity, on the other hand, arises from contract, express or implied, and is a right of a person who has been compelled to pay what another should pay in full to require complete reimbursement. Maryland Cas. Co. v. Frederick Co. (1944), 142 Ohio St. 605, at page 607, 53 N.E.2d 795.

Appellee, as well as the trial court and the Court of Appeals relies upon the principle that ordinarily there is no contribution or indemnity between joint or concurrent tortfeasors. Talmadge v. Zanesville and Maysville Road Co. (1842), 11 Ohio 197; Pennsylvania Co. v. West Penn Railways Co. (1924), 110 Ohio St. 516, 144 N.E. 51; Royal Indemnity Co. v. Becker (1930), 122 Ohio St. 582, 173 N.E. 194; United States Cas. Co. v. Indemnity Ins. Co. (1935), 129 Ohio St. 391, 195 N.E. 850; Massachusetts Bonding & Ins. Co. v. Dingle-Clark Co. (1943), 142 Ohio St. 346, 52 N.E.2d 340, and Maryland Cas. Co. v. Gough (1946), 146 Ohio St. 305, 65 N.E.2d 858.

Appellant relies upon an exception to the general rule that, where a person is chargeable with another's wrongful act and pays damages to the injured party as a result thereof, he has a right of indemnity from the person committing the wrongful act, the party paying the damages being only secondarily liable; whereas, the person committing the wrongful act is primarily liable. Zanesville v. Fannan (1895), 53 Ohio St. 605, 42 N.E. 703; Morris v. Woodburn (1897), 57 Ohio St. 330, 48 N.E. 1097; Bello v. Cleveland (1922), 106 Ohio St. 94, 138 N.E. 526; Larson v. Cleveland Railway Co. (1943), 142 Ohio St. 20, 50 N.E.2d 163; Globe Indemnity Co. v. Schmitt (1944), 142 Ohio St. 595, 53 N.E.2d 790; Maryland Cas. Co. v....