Quarles, Chas B.

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Contribution Between Joint Tort Feasors

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Marquette Law ReviewVolume 1Issue 3 Volume 1, Issue 3 (1917) Article 4Contribution Between Joint Tort FeasorsChas B. QuarlesMilwaukee BarFollow this and additional works at: http://scholarship.law.marquette.edu/mulrPart of the Law CommonsThis Article is brought to you for free and open access by the Journals at Marquette Law Scholarly Commons. It has been accepted for inclusion inMarquette Law Review by an authorized administrator of Marquette Law Scholarly Commons. For more information, please contactmegan.obrien@marquette.edu.Repository CitationChas B. Quarles, Contribution Between Joint Tort Feasors, 1 Marq. L. Rev. (1917).Available at: http://scholarship.law.marquette.edu/mulr/vol1/iss3/4SPURIOUS AND QUESTIONED DOCUMENTS'marks or erasures, nor should letter press copies be made of it, orany tracings save by the gentlest and most skilful hand. Gen-erally the earlier such documents reach the control of the courtor its custodians, the better.Finally, counsel seeking the aid of an expert, should callupon him as soon as the necessity appears in order that he mayhave ample time within which to make his investigations andprepare for trial. As Prof. Wigmore well observes, "It is pre-posterous to expect him invariably to obtain by a brief inspectionon the stand the necessary data for an opinion. Close measure-ments, detailed enlargement, and other expedients of the expert,may often require not only a length of time but a quantity ofapparatus and a certain degree of seclusion."86CONTRIBUTION BETWEEN JOINTTORT-FEASORSCHAS. B. QUAnIts.*With all the litigation in negligence cases and the greaterpart of the cases tried in our courts is of this kind, it seemsstrange indeed that the courts have not since long settled andplaced beyond dispute all questions as to the rights of personsliable on joint tort- judgments.But such is far from being true. The right of the judgmentcreditor to enforce the judgment in solido against any of thedefendants is plain. But where one such judgment debtor hasbeen forced to pay more than his aliquot part of the liability,what his rights are if any he has against the others, is very muchunsettled at least in the minds of most lawyers.In the ordinary negligence case where there was no concertof action and no real intent to do the plaintiff an injury, it isobviously fair for each of the defendants to stand his propor-tionate share of the loss. But after such a judgment has been86. 3 Ev. sec. 2oii.* Member of the Milwaukee bar.1411 MARQUETTE LAW REVIEWwholly paid and satisfied by one defendant, can he enforce contri-bution against the others?If the statement so generally given in the text books and byway of obiter in the opinions found in the reports is correct,"there can be no contribution between joint tort-feasors." For-tunately, however the courts have quite generally, although notalways, where the question was squarely presented for theirdecision, applied the rule as it should be applied, only to caseswhere the defendant was guilty of a wilful wrong. In such casesit seems correct that they should be denied recovery for thecourts will not lend their aid to a wrongdoer, to minimize theloss for which he is morally responsible.An examination of the reported cases and a search into thehistory of the doctrine reveals the fact that the rule againstcontribution is one of limited rather than of general applicationand one that is properly confined within the limits abovesuggested.Merryweather vs. Nixan, g Term. Rep. 186, K. B. 1799 isgenerally considered as the first and leading case wherein contri-bution was denied between wrongdoers. Many text writers andsome judges in their opinions have carelessly referred to thiscase as stating the general proposition that in no case can therebe contribution between persons jointly liable for tort.In the Merryweather case, supra, a judgment had beenobtained against the then plaintiff and defendant for an injurydone by them to a reversionary estate in a mill. The opinionstates as to the first judgment creditor: "Having recovered840 1. he levied the whole on the present plaintiff who thereuponbrought this action against the defendant for a contribution ofa moiety as for so much money paid to his use." A non-suitwas granted on the ground that no contribution could by law beclaimed as between joint wrongdoers. The rule of that caseshould not be extended to dissimilar situations and text writersto the contrary notwithstanding, courts have generally limited therule to cases where the defendants were as in the cited caseguilty of conscious and wilful wrongdoing.In 9 Cyc. 804, appears the statement:"Where one of several wrongdoers has been com-pelled to pay the damages for the wrong committed, theCONTRIBUTION BETWEEN JOINT TORT-FEASORSgeneral rule is that he cannot compel contribution fromthe others who participated in the commission of thewrong."Then the author gives exceptions to the rule limiting it tocases where the person seeking redress must be presumed tohave known that he was doing a wrongful act and stating asexamples cases of attaching creditors, innocent agents, personsguilty of mere negligence, and technical wrongdoers.The general rule of law is that"Where two or more persons are jointly or jointlyand severally bound to pay a sum of money and one ormore of them are compelled to pay the whole or morethan his or their share, those paying may recover fromthose not paying the aliquot proportion which they oughtto pay."7 Amer. & Eng. iEnc. of Law (2nd ed.) 326.Why would it not be better to give as an exception to thegeneral rule the case of wilful or intentional wrongdoers ratherthan to state that the general rule is against contribution betweenwrongdoers and then except all cases but those of persons guiltyof a wilful wrong? This statement of the law would certainlylead to less confusion and be more nearly accurate, because thedoctrine is itself an exception rather than a rule.It seems strange that the situation does not arise more fre-quently where defendants held to joint liability because of negli-gence are forced to seek contribution by reason of being requiredto pay more than their aliquot proportion of a judgment forwhich they are liable in solido. It is significant that in this statethere is no reported decision of this kind although the reasoningin one of our late decisions strongly suggests what the WisconsinSupreme Court would hold in such a case.In Merten vs. Puffer, 157 Wis. 576, a claim for contributionwas brought lVy one partner against the estate of his deceasedco-partner. The firm had received a fee for legal services incarrying out an arrangement whereby an estate was distributedin a manner which was later declared by the court to be differentfrom that provided by the will. The settlement having been143I MARQUETTE LAW REVIEWdeclared invalid, the sum received by the firm was required tobe paid back to the trustee of the estate. One of the partnersmade the payment and then sued the estate of the other for con-tribution. Such contribution was allowed and approved by thesupreme court because the partners acted honestly and in goodfaith but under a mistaken conception of the law, and becausethey were not conscious wrongdoers.It is interesting to note that in the decision, Winslow, C.J., says:"The principle that there can be no contributionbetween wrongdoers is very familiar and is frequentlyapplied."The decision, however, does not hold that there can be nocontribution between wrongdoers but does decide that there canbe contribution between persons liable ex delicto but not guiltyof conscious or intentional wrongdoing.There is no obstacle in principle or authority to contributionbetween persons guilty of mere negligence, and when a case ofthis kind does come before our supreme court it seems thatcourt will hold that the rules of law and equity will entitle plain-tiff to a recovery.Where the situation has arisen in other states the courtshave almost uniformly so held. For instance in the case ofAtnkeny vs. Moffett, 37 Minn. 109, 33 N. W. 32o-personal injuryaction-Mitchell, J., says:"That rule (the rule against contribution) is applic-able only where the person seeking the contribution wasguilty of an intentional wrong, or, at least, where he mustbe presumed to have known that he was doing an illegalact. It is immaterial whether the ground of Walter's re-covery was the negligence of Moffett and Johnson person-ally, or that of their agent, the builder. In neither onewas there any intentional wrong. In the one case it wouldbe mere negligence in doing a lawful act; in the othercase there would be no personal fault whatever on theirpart. In neither case would the rule apply."144CONTRIBUTION BETWEEN JOINT TORT-FEASORSIn a later case, Mayberry vs. R. R. Co., i1O Minn. 79; IioN. W. 356 at page 357, the court says:"One of the principal reasons assigned by those courtswhich hold such a joinder improper is that the right ofcontribution is lost and cannot be resorted to by one againstthe other co-defendant. This reason, as applied to casesof this kind, is unsound. There is, it is true, a generalrule that the right of contribution does not exist as be-tween joint tort-feasors; but it applies only between per-sons who by concert of action intentionally commit thewrong complained of. Where there is no concert of actionin the commission of the wrong, the rule does not apply.In such cases the parties are not in pari delicto as to eachother, and as between themselves their rights may be ad-justed in accordance with the principles of law applicableto the relation in fact existing between them. The ruledoes not apply to torts which are the result of mere negli-gence. Ankeny vs. Moffett, 37 Minn. 109, 33 N. W. 320."The rule as to contribution is expressed by the Ohio courtas follows:"The common sense rule and the legal rule are thesame, namely, that when parties think they are doing alegal and proper act, contribution will be had; but whenthe parties are conscious of doing a wrong, courts willnot interfere."Achinson vs. Miller, 2 Ohio (N. S.) 203, quoted in Cooleyon Torts (2d ed.) p. 17o.Another complication which frequently arises or which isapt to arise out of a misconception of this rule, is where one ormore of the persons jointly chargeable with negligence is insuredwith a liability company. Where such insurance company paysthe judgment or takes an assignment of it, is there any reasonwhy it cannot recover the whole amount of the judgment fromthe other parties or at least have contribution? If the insurerstands in the shoes of its assured, taking an assignment wouldnot place it in any different position than if it had paid the judg-ment and caused it to be released, but as its liability is on con-tract only, and it is not itself a wrongdoer, it could hardly be1 MARQUETTE LAW REVIEWsuccessfully maintained that it would be barred of recovery underany principles of equity.A somewhat similar situation was considered in Kolb vs.National Surety Co., 176 N. Y. 233, 68 N. E. 247, in which casea judgment was obtained against several tort-feasors. An appealwas taken, one of the defendants filing an undertaking on theappeal. The surety on such undertaking paid the judgment andsued to recover against the other tort-feasors. The court saysat page 248"The appellant argues that when the surety companypaid the judgment recovered by Smith, the effect was thesame as though Adwen, for whom it was surety, had paidthe judgment against him and his co-defendants; that, as ajudgment recovered in tort, it was extinguished by the pay-ment and no right of contribution against this plaintiff orTheodore Smith who were joint tort-feasors with Adwensurvived or existed."The court then discusses this question and states further:"In the second place, the surety in this case does notcome within the reprobation of the court in any aspect;for, the principle of equal contribution being a just one,even as between wrongdoers, and the denial of its recog-nition resting upon especial grounds, which would bepeculiar to the complainant in the bill for equitable relief,this surety is not embarrassed by asking for that whichthe court had, in the Adwen proceeding, accorded to it.It is innocent of any wrongdoing. That it has paid anindebtedness, arising upon a judgment in tort againstseveral, for one of the judgment debtors, should not, asa matter of natural justice, deprive it of the right, ap-proved as it is by a decree of the court, to compel thejoint debtors to contribute proportionately to the paymentof the judgment now its property. The right of subroga-tion is founded in natural justice, and it should be giveneffect upon purely equitable considerations. * * *"But there is another conclusive objection to the main-tenance of this action, and that is that this appellant doesnot commend himself to the equitable consideration of the146CONTRIBUTION BETWEEN JOINT TORT-FEASORScourt. As a joifit tort-feasor, he is subject to the opera-tion of the rule that a court of equity will not listen to oneseeking to be relieved of his liability under a joint judg-ment in tort. He has no more right to demand equitableintervention in his behalf than if the judgment creditorhad assigned his judgment to some stranger to the parties,and the purchaser was enforcing it against him as one ofthe judgment debtors. How can the appellant come intoa court of equity and ask that he be relieved from payinga proportion of the judgment which he had agreed to pay,and which, in fact, is less than what might be exactedfrom him as his proportion? His position is highly in-equitable whether he be regarded as one of several jointtort-feasors seeking immunity from contribution, orwhether he be regarded as violating his express agree-ment and as seeking to escape the liability he had recog-nized as existing under the judgment against him."I think the judgment appealed from is right, and thatit should be affirmed, with costs."This case was approved in Brinkerhoff vs. Holland Trust Co.,159 Fed. 191 at 20.The writer recently had occasion to prosecute a case involv-ing the questions discussed in this paper, but unfortunately thatlitigation terminated before reaching the Supreme Court and toosoon to become the occasion of a direct precedent on a somewhatmisunderstood or carelessly quoted rule.But a careful briefing of the subject disclosed the fact to bethat the great weight of authority in the decisions holds to therule of contribution in all cases of persons liable on judgmentsex delicto excepting for wilful wrongs. The statement frequentlyfound in text books and as obiter in decisions that there can beno contribution between tort-feasors is wrong and grossly mis-leading in that it states what is really an exception as thoughit were the rule.

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Contribution Between Joint Tort Feasors

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