Vaughn v. Gill
| Decision Date | 11 December 1953 |
| Citation | 264 S.W.2d 805 |
| Parties | VAUGHN et al. v. GILL. |
| Court | Tennessee Supreme Court |
Whitaker, Hall & Haynes, Chattanooga, for plaintiffs.
Noone, Tanner & Noone, Chattanooga, for defendant.
This a bill in equity, filed by one of two tort-feasors against the other, to recover contribution of one-half of a judgment at law which the insurer of the complaining tort-feasor had been compelled to pay.
The facts leading to the filing of the bill are as follows:
On October 19, 1950, on one of the public streets of the City of Chattanooga, complainant, Alfred Eugene Vaughn, while driving an automobile owned by his father, Alfred W. Vaughn, and being used as a family car, collided with the rear end of an automobile owned and operated by the defendant Morris Gill, in which Rose Finkelstein was a passenger. As a result of the collision, two suits were filed in the Circuit Court of Hamilton County: (1) Rose Finkelstein filed suit against the Vaughns for personal injuries sustained in said accident, but she did not make Gill a party defendant. (2) Gill filed suit against the Vaughns for damage to his automobile. The cases were tried together before a jury in the Circuit Court. Rose Finkelstein recovered a judgment of $2,000 against the Vaughns, and this judgment was paid by their insurer, Commercial Standard Insurance Company. In the Gill suit, the jury rendered judgment for the defendants; '* * * they found the collision involved proximately resulted from the combined negligence of the plaintiff and the defendant Alfred Eugene Vaughn, and that they therefore found in favor of the defendant.'
In this situation, the original bill was filed in this cause by the Vaughns against Gill for contribution of one-half the judgment paid by the Insurance Company. The bill was met by demurrer, and after several amendments to the bill and several supplementary grounds of demurrer had been allowed and filed, the Chancellor sustained the demurrer and dismissed the bill. The complainants perfected a broad appeal, and the cause is thus before us for disposition.
The primary question presented by several of the grounds of the demurrer is whether the complainants, accepting all the allegations of fact in the bill to be true, show in themselves a right to recover contribution from the defendant. To determine this, we must take the bill as it is presented to us in this record. The style of the cause there is merely:
'Alfred Eugene Vaughn, et al. v. Morris Gill
'Complainants respectfully show to the Court:
'I
By paragraph IV, it is alleged that complainant Alfred W. Vaughn had a policy of liability insurance with the Commercial Standard Insurance Company of Fort Worth, Texas, and that his son, Alfred Eugene Vaughn, was also covered by said policy so far as the accident here involved is concerned, and that after the judgment in the Finkelstein case rendered against the Vaughns only, the Insurance Company paid the judgment in full. The bill then alleges:
No subsequent amendment of the bill changed this last quotation. There is no allegation in the bill that the suit is brought on behalf of the Insurance Company, and the pertinent prayer of the bill is that:
'The Complainants be given a decree against the Defendants in amount of $1,013.65, plus interest from the date of payment of said judgment and the costs hereof.'
The effect of the quoted allegation of the right of subrogation of the company under the policy, section 17, is to assert that if there is a right of contribution, that that right is exclusively in the Insurance Company. There is no assertion that the bill was filed at the direction of the Insurance Company, nor is there any allegation in the bill that any one authorized to act for the Insurance Company had exercised its right of subrogation under the policy.
Aside from this, which we hold to be a conclusive objection to the bill, the complainants fail to show in themselves any loss for which the defendants should partially indemnify them under the equitable principle of contribution. Indeed, the bill alleges that they have been wholly indemnified already by the payment by the Insurance Company of the entire amount of the judgment and costs.
To dispose of the appeal, we find it necessary to consider only one other proposition, which is presented by ground 9 of the demurrer, as follows:
'It is not alleged in the bill that the defendant and the complainants are under a common burden or liability; therefore, there is no right of contribution.'
In their bill, complainants make the following averment:
'It is averred that the damages which were found and adjudged against the complainants in favor of Rose Finkelstein, in amount of $2,000 and costs were the result of the joint and active negligence of the complainant Alfred Eugene Vaughn (for which the defendant Alfred W. Vaughn was also liable under the Family Purpose Doctrine) and of the defendant Morris Gill, and that complainants, Alfred Eugene Vaughn and Alfred W. Vaughn, have a right of contribution against the defendant, Morris Gill, for one-half the amount of said Judgment against them.'
And by leave of Court, that averment was amended and elaborated as follows:
'* * * by reason of the said concurrent negligence of complainant Alfred Eugene Vaughn and defendant complainants on the one hand and defendant on the other became jointly liable to Rose Finkelstein for the damages sustained by her as a result thereof.'
From other averments in the bill it appears that Gill was never a party defendant in the suit of Finkelstein v. Vaughn, and that the foregoing quotation from the bill was a mere conclusion of the pleader and a proposition of law, which is not binding on this Court on the demurrer. From the bill, it is clear that the statement that Gill became liable to Rose Finkelstein in any amount is untrue in fact. From the amount of contribution sought and other averments in the bill, it is also clear that the basis of the suit is the judgment in Finkelstein v. Vaughn, and the Chancellor so found, but no judgment has been rendered against Gill.
The basis of the right to contribution in equity under facts such as those presented here is not that two tort-feasors have jointly committed a wrong, but that an obligation or burden has been imposed on one of two tort-feasors, when in equity, liability for the obligation or burden was common to both.
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