Tufty v. Sioux Transit Co.

• Decision Date: 19 January 1943
• Docket Number: 8606.
• Citation: 7 N.W.2d 619,69 S.D. 148
• Parties: TUFTY v. SIOUX TRANSIT CO. et al.
• Court: South Dakota Supreme Court

7 N.W.2d 619

69 S.D. 148

TUFTY v. SIOUX TRANSIT CO. et al.

No. 8606.

Supreme Court of South Dakota

January 19, 1943

Bailey Voorhees, Woods & Bottum, of Sioux Falls, for appellant.

Louis H. Smith, and Davenport, Evans & Hurwitz, all of Sioux Falls, for respondents.

RUDOLPH Judge.

The defendants, Ted Tufty and Sioux Transit Company, were each charged in the complaint filed in this action with being negligent in the operation of separate motor vehicles, one of which was operated by the defendant Tufty and the other operated by the agent of the Sioux Transit Company. The complaint further charged that the negligence of the two defendants resulted in the injury and death of plaintiff's intestate. A trial was had and a verdict returned by the jury against the defendant Sioux Transit Company only. The jury absolved the defendant Ted Tufty from any liability. Upon the verdict judgment was entered against the Sioux Transit Company and the complaint against the defendant Ted Tufty was dismissed on its merits. The defendant Sioux Transit Company has attempted to appeal not only from that portion of the judgment which fixes its liability, but also from the portion of the judgment which dismisses the complaint against Tufty. The action is now before this court on a motion of the defendant Tufty to dismiss the appeal of his codefendant in so far as it relates to that portion of the judgment absolving him from any liability.

It is the contention of the defendant Tufty that no right of contribution exists between joint tort-feasors and that it follows that it is no concern of the appealing defendant whether or not the defendant Ted Tufty was held liable by the jury. The court in the case of Wallace v. Brende et al., 66 S.D. 582, 287 N.W. 328, in the absence of any statute on the subject, followed the general common law in the United States on the right of contribution between joint tort-feasors which is stated in the Restatement of the Law on Restitution Section 102, as follows: "Where two persons acting independently or jointly, have negligently injured a third person or his property for which injury both became liable in tort to the third person, one of them who has made expenditures in the discharge of their liability is not entitled to contribution from the other."

Such being the established law in this state, we are of the opinion that the defendant Tufty's position upon this motion to dismiss the...