Zontelli Brothers v. Northern Pacific Railway Co., 16063.

• Decision Date: 26 January 1959
• Docket Number: No. 16063.,16063.
• Citation: 263 F.2d 194
• Parties: ZONTELLI BROTHERS, a Corporation, Appellant, v. NORTHERN PACIFIC RAILWAY COMPANY, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

263 F.2d 194 (1959)

ZONTELLI BROTHERS, a Corporation, Appellant, v. NORTHERN PACIFIC RAILWAY COMPANY, Appellee.

No. 16063.

United States Court of Appeals Eighth Circuit.

January 26, 1959.

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Joseph B. Johnson, Duluth, Minn. (Reavill, Jenswold, Neimeyer & Johnson, Duluth, Minn., were with him on the brief), for appellant.

W. S. Lycan, Jr., St. Paul, Minn. (M. L. Countryman, Jr., and Earl F. Requa, St. Paul, Minn., were with him on the brief), for appellee.

Before JOHNSEN, VOGEL and MATTHES, Circuit Judges.

MATTHES, Circuit Judge.

The question presented for determination in this proceeding, which may be considered as ancillary to the main action,¹ is focused upon the right of appellee, Northern Pacific, to contribution from appellant, Zontelli, for a portion of the amount paid by Northern Pacific in settlement of a death claim.

One Orton Alfred Ryen, for brevity's sake called Ryen, was an employee of Northern Pacific, who, while working as a member of a train crew on October 18, 1956, died from injuries received in a collision between the caboose on which he was riding and a motor vehicle being operated for and in behalf of Zontelli. Thereafter, Hulda C. Ryen, widow of the deceased, was appointed as special administratrix of his estate, and, pursuant to Title 45 U.S.C.A. § 51 (Federal Employers' Liability Act), instituted an action against Northern Pacific in the District Court, as the personal representative of decedent, for and in behalf of the widow, seeking damages for his death in the sum of $200,000. On motion of Northern Pacific, an order was entered by the court bringing Zontelli into the case as a third-party defendant. Northern Pacific thereupon filed its third-party complaint in which it alleged that the collision between the caboose and Zontelli's truck, and the resulting death of Ryen, were caused by the sole negligence and carelessness of Zontelli, and that in the event Northern Pacific was found to be liable to plaintiff, Zontelli was liable to Northern Pacific for the full amount it was required to pay.

Prior to the time that the main action came on for trial, Northern Pacific and plaintiff therein reached a settlement under which Northern Pacific agreed to pay the sum of $42,500 in full settlement of damages resulting from Ryen's death. Following the settlement agreement, the widow, Hulda C. Ryen, caused herself to be appointed as trustee of the heirs of Ryen, deceased, pursuant to 37 Minn.Stat.Anno. § 573.02, subd. 2, as amended Laws 1951, c. 697, § 1; Laws 1955, c. 407, § 1. (Hereinafter referred to as "Wrongful Death Act.") Thereafter, Northern Pacific paid the sum of $42,500 to Hulda C. Ryen, as special administratrix of the estate of Ryen, deceased, and as trustee, taking a release from her in both capacities, whereby both Northern Pacific and Zontelli were fully and forever discharged and acquitted from all claims growing out of the death of Ryen.

After consummation of the settlement with plaintiff in the main action, Northern Pacific filed its amended complaint against Zontelli, which contained allegations essential to a recovery by way of indemnity or contribution. The style of the action was made to conform to the caption hereof. The case was submitted to the jury under instructions authorizing a verdict against Zontelli for one-half of the amount determined to be a fair, just and provident settlement with the maximum recovery fixed at $21,250, or one-half of the amount paid in settlement of the death claim.² The jury found for Northern Pacific for $21,250, and judgment was duly entered thereon.³ A memorandum order, reported at 161 F.Supp. 769, was entered by the trial court, denying Zontelli's subsequent motion for judgment in accordance with its motion for directed verdict, and appeal was duly perfected to this Court.

Underlying the primary and basic issue is the question of whether Zontelli and Northern Pacific were joint tort-feasors or joint wrongdoers in the sense that their torts imposed a common liability upon them to respond in damages for the death of Ryen. Succinctly stated, Zontelli argues that common liability was absent; Northern Pacific insists that it was present. The right to contribution, created by statute in some jurisdictions, existing by virtue of the common law in others, lies to force an equitable apportionment of an equal share of the total loss suffered or money necessarily paid by one of the parties subject to a common liability, in behalf of the other party, or all who are subject to such common liability.⁴ A review of the law controlling the right of contribution among unintentional tort-feasors, existing under the common-law in Minnesota,⁵ discloses that: "(t)he very essence of the action * * is `common liability.'" American Automobile Ins. Co. v. Molling, 239 Minn. 74, 57 N.W.2d 847, 849; Koenigs v. Travis, 246 Minn. 466, 75 N.W.2d 478, 483. The history of the action for contribution is not only reviewed in American Automobile Ins. Co. v. Molling, supra, but the elements going to make up the doctrine are enumerated. From what is there said, as well as through prior expressions of the Minnesota Supreme Court and other authorities, it may authoritatively be stated that, as between tort-feasors, the right of contribution does not accrue in Minnesota unless they were cotort-feasors or joint wrongdoers in the sense that their tort or torts imposed a common liability upon them to the party injured. Concurring negligence alone by the tort-feasors is not enough; if, as a matter of law the concurring negligence of the party from whom contribution is sought gives the injured party no cause of action against him, there is no common liability. Typical of the situations where there was no common legal liability to give rise to contribution are American Automobile Ins. Co. v. Molling, supra, where contribution was sought from the husband of the injured party, and denied because of the common-law rule of marital immunity in effect in Minnesota, and Koenigs v. Travis, supra, in which the injured woman married the driver of the automobile from whom contribution was sought, after the automobile collision which gave rise to the main suit. Again, the court held there was no common liability because plaintiff had no right of action against her husband. See also, Fort Worth & Denver Railway Co. v. Threadgill, 5 Cir., 228 F.2d 307 (contributory negligence, a complete bar to recovery from one cotort-feasor, destroyed common liability).

Tested by the applicable principles, we are persuaded to hold that there was common liability between appellant and appellee. It of course cannot be disputed that Northern Pacific's liability for Ryen's death, as a common carrier by railroad, was bottomed on and existed because of the Federal Employers' Liability Act, supra, whereas the claim against Zontelli had to be grounded on the Minnesota Wrongful Death Act, supra. It is equally obvious that the F.E.L.A. provides that damages for death of an employee of a common carrier by railroad may be recovered by the personal representative of the deceased, while the Minnesota act gives to the trustee, appointed in accordance with the provisions thereof, the right to maintain an action for wrongful death. However, while the statutes differ slightly in the designation of the party entitled to prosecute the actions (Personal representative, such as an administrator, under F.E.L.A.; Trustee under Minnesota wrongful death act), as to the matter of real importance, viz.: the beneficiary of the damages recoverable, here concededly, the widow, the statutes are on common ground. Under Title 45 U.S.C.A. § 51, the amount paid to the personal representative is "for the benefit of the surviving widow or husband and children of such employee;" etc. Under the Minnesota Act, the recovery "shall be for the exclusive benefit of the surviving spouse and next of kin," etc. Sound authority and clear logic decree that although varying state wrongful death statutes require the action to be brought in the name of the personal representative, it is prosecuted by the administrator, executor or trustee in point of form only — it actually being in favor of the surviving beneficiary who is the real party in interest. 25 C.J.S. Death § 33, 16 Am.Jur., Death, § 266; cf. Vaughn's Adm'r v. Louisville & N. R. Co., 297 Ky. 309, 179 S.W.2d 441, 152 A.L.R. 1060, 1065; Chicago, R. I. & P. R. Co. v. Schendel, 270 U.S. 611, 46 S. Ct. 420, 70 L.Ed. 757, 53 A.L.R. 1265, 1272. The same rule obtains in death actions under F.E.L.A. See Schendel v. Chicago, M. & St. P. Ry. Co., 168 Minn. 152, 210 N.W. 70, at page 72 where this pronouncement appears: "The cause of action for the wrongful death of Baker is given by the (F)ederal Employers' Liability Act to the use of his dependents. It is not given to his estate. It is transitory. * * * The act vests in the administrator a mere naked power to enforce the claim for the sole benefit of Baker's widow and son." And, in Minnesota, the recovery in an action under the wrongful death act forms no part of the estate of the decedent but belongs exclusively to the next of kin designated by the statute. Turner v. Minneapolis St. Ry. Co., 153 Minn. 509, 190 N.W. 986.

In addition to the common feature noted, the measurement of damages under the two statutes is the same. The only real difference lies in the extent or limit of liability, fixed by the Minnesota act, with no limitation thereon under F.E.L.A., and the effect of contributory negligence, which bars recovery under Minnesota law, but only mitigates the damages under F.E.L.A. It has been conclusively determined in Minnesota that the difference in the applicable law of liability of a common carrier by railroad and one operating otherwise is not of sufficient force to destroy "common liability" as applied to indemnity and contribution actions. See Lawrence v. Great Northern Ry. Co., D.C., 98 F.Supp. 746; D.C., 109...