Posner, A. M.

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Louisiana Law ReviewVolume 7 | Number 4May 1947Indemnity - Right of Master Against Servant -Necessity of Prior Judgment Against ClaimantA. M. PosnerThis Note is brought to you for free and open access by the Law Reviews and Journals at LSU Law Digital Commons. It has been accepted for inclusionin Louisiana Law Review by an authorized editor of LSU Law Digital Commons. For more information, please contact kreed25@lsu.edu.Repository CitationA. M. Posner, Indemnity - Right of Master Against Servant - Necessity of Prior Judgment Against Claimant, 7 La. L. Rev. (1947)Available at: https://digitalcommons.law.lsu.edu/lalrev/vol7/iss4/9LOUISIANA LAW REVIEWunless it can be said that clipping a coupon or depositing a checkis an administration of property. The conclusion that the courtreached is well substantiated by all previous judicial interpreta-tions on the subject.JOHN D. DAGGETTINDEMNITY-RIGHT OF MASTER AGAINST SERVANT-NECESSITYOF PRIOR JUDGMENT AGAINST CLAIMANT-A widow brought suitfor $44,265 against the driver whose negligence allegedly causedher husband's death and against the driver's employer. The trialin the lower court resulted in a judgment in the widow's favoragainst the employer in the amount of twelve thousand dollars.Before either party appealed, the claim was compromised bythe widow and the employer, the latter paying seven thousanddollars and both agreeing not to prosecute an appeal. The em-ployer then sought indemnity from the driver in the amount thuspaid the widow. He stated as his cause of action that he had beencompelled to pay seven thousand dollars in order to be rid ofthe judgment for twelve thousand dollars and that the cause ofthe judgment being rendered against him was the driver's negli-gence in causing the death of the widow's husband. On appeal,the Louisiana Supreme Court sustained the driver's exceptionof no cause or right of action. This decision was based primarilyupon the ground that the plaintiff employer had not been com-pelled by a final judgment to pay any amount to the widow.Winford v. Bullock, 26 So. (2d) 822 (La. 1946).A review of the jurisprudence indicates that Louisiana isamong that minority of states which allow contribution betweenjoint tortfeasors.1 The recent trend toward allowing such con-tribution has been evidenced in some states by legislative enact-mentse and in others by judicial action.8 The Louisiana rule,1. The general rule at common law has long been that there is no rightof action for contribution between joint tortfeasors. Gobble v. Bradford, 226Ala. 517, 147 So. 619 (1933); Central Georgia Ry. v. Swift & Co., 23 Ga. App.346, 98 S.E. 256 (1919); Village of Portland v. Citizens' Telephone Co., 206Mich. 632, 173 N.W. 382 (1919); Brown v. Southern Ry., 111 S.C. 140, 96S. E. 701 (1918); City of Tacoma v. Bonnell, 65 Wash. 505, 118 Pac. 642, 36L.R.A. (N.S.) 582 (1911).2. Ky. Rev. Stat. (1944) § 412.030; Md. Code Ann. (Flack, Supp. 1943)art. 50, §§ 21-27; Mo. Rev. Stat. (1939) § 3658; New York Civil Practice Act,§ 211-a; N.C. Code Ann. (Michie, 1935) § 618; Tex. Ann. Rev. Civ. Stat. (Ver-non, 1935) art. 2212; Va. Code Ann. (Michie, 1942) § 5779; W. Va. Code Ann.(Michie, 1943) § 5482.3. Underwriters at Lloyd's of Minneapolis v. Smith, 166 Minn. 388, 208 N.W.13 (1926); Ellis v. Chicago & N. W. Ry., 167 Wis. 392, 167 N. W. 1048 (1918).[Vol., VIINOTESthat, as between parties concurrently negligent, the one who haspaid more than his share of the damages to an injured third per-son can recover contribution from the others only where a jointjudgment has been rendered against both in the suit by the in-jured person, was first announced in the leading case of Quatrayv. Wicker.4 There it was stated that the right of action is grantedby the Civil Code 5 in Articles 2324 and 2103. Under Article 2324,the liability of joint tortfeasors for damages resulting from theirconcurrent negligence is a solidary liability. Article 2103 declaresthat those who are liable in solido for an indebtedness to a thirdparty are liable, each for his share of the debt, to each other.The court in Quatray v. Wicker distinguishes the earlier caseof Sincer v. Widow and Heirs of Bell,O in which contribution wasdenied because there had been judgment against only one of theparties. The rule of the Quatray case was affirmed in a latercase.7The principal case, however, is not one for contribution butone for indemnity. The plaintiff did not contend that the damageresulted from the concurrent negligence of himself and the de-fendant. On the contrary, he claimed that it was due solely tothe negligence of the defendant and that his, the plaintiff's, lia-bility to the widow arose only by virtue of the doctrine of re-spondeat superior.In the early case of Brannan, Patterson & Holliday v. Hoel,the plaintiff had compromised without suit a claim for damagescaused by the negligence of the defendant, its employee. In thesubsequent action for indemnity, full recovery was allowed, thecourt saying, "the compromise of the demand of [the injuredparty] against the plaintiff cannot prejudice the right of the latterto recover.""4. 178 La. 289, 151 So. 208 (1933). It is interesting to observe that underFrench law there is no such requirement of a joint judgment. 1 Sourdat,La Responsabilit6 on FAction en Dommages-Int~r~ts (6th Ed. 1911) n ° 163;3 Demolombe, Trait6 des Contrats (1875) n* 308; 2 Baudry-Lacantinerie etBarde, Trait des Obligations (1902) n° 1305; 6 Planiol et Ripert, TraitPratique du Droit Civil Francais (1925) n° 687.5. La. Civil Code of 1870.6. 47 La. Ann. 1548 (1895).7. Aetna Life Ins. Co. v. DeJean, 185 La. 1074, 171 So. 450 (1936), wherethe action failed under circumstances similar to those in Sincer v. Widowan, Heirs of Bell. See dictum to same effect in Toye Bros. Yellow Cab Co.v. V-8 Cab Co., 18 So.(2d) 514 (1944).8. 15 La. Ann. 308 (1860).9. 15 La. Ann. 308, 309.1947]594 LOUISIANA LAW REVIEW [Vol. VIIBetween Brannan v. Hoel and the principal case, the courtsconsidered a number of cases for indemnity arising out of tort.Indemnity was allowed in Costa v. Yochim'0 where an employerhad been compelled by judgment to pay the injured person andthen sued the negligent employee, and in Appalachian Corpora-tion v. Brooklyn Cooperage Co.," where the plaintiff owner re-covered from the occupier of premises after paying a judgmentto the injured third person. Analogous factual situations werepresented in Sutton v. Champagne12 and in American Employer'sInsurance Company v. Gulf States Utilities Company, 3 exceptthat in each of these latter instances the injured party had ob-tained a joint judgment against both plaintiff and defendant.Here again indemnity was awarded. Although in each of theabove four cases the plaintiff had been compelled by final judg-.ment to pay the claim of the third person, in none of them didthe court venture that such a judgment was a condition precedentto the plaintiff's right of action for indemnity.In the instant case, the court made no mention of Brannan v.Hoel, although it is directly in point and reflects the majorityview of other state courts1 4 and of the federal courts. 1 Whatevermay be the merits of holding that a joint judgment in favor ofthe injured third person is a prerequisite to a right of action forcontribution between defendants concurrently or jointly negli-gent, there appears to be no logical reason for the propositionthat a judgment against one only constructively or derivativelyliable for damages is necessary in order for him to seek indemnityfrom the actual wrongdoer. Such a judgment in a suit to whichthe latter was not a party would not be conclusive as to him,1"10. 104 La. 170, 28 So. 992 (1900).11. 151 La. 41, 91 So. 539 (1922).12. 141 La. 469, 75 So. 209 (1917).13. 4 So.(2d) 628 (La. App. 1941).14. Smith v. Foran, 43 Conn. 244, 21 Am. Rep. 647 (1875); Fahey v. Har-vard, 62 Ill. 28 (1871); Miles v. Southeastern Motor Truck Lines Inc., 295Ky. 156, 173 S.W.(2d) 990 (1943); Inhabitants of Swansey v. Chace. 82 Mass.303 (1860); Minneapolis Mill Co. v. Wheeler, 31 Minn. 121, 16 N.W. 698 (1883);Hanover v. Dewey, 58 N.H. 485 (1878); Frank Martz Coach Co., Inc. v. Hud-son Bus Transportation Co., Inc., 133 N.J.L. 342, 44 A.(2d) 488 (1945); Buttonv. Kinnitz. 88 Hun 35,, 34 N.Y. Supp. 522 (195); Globe Indemnity Co. '.Schmitt, 142 Ohio St. 595, 53 N.E.(2d) 790 (1944); Aberdeen Constr. Co. v.City of Aberdeen, 83 Wash. 429, 147 Pac. 2 (1915).15. George A. Fuller Co. v. Otis Elevator Co., 245 U.S. 489, 38 S.Ct. 180,62 L.Ed. 422 (1918); Donald v. Guy, 127 Fed. 22A (E.D. Va. 1903).16. Brannan v. Hoel, 15 La. Ann. 308 (1860).NOTESand in the action for indemnity he would be entitled to completerelitigation of all issues."The court seemed impressed by the fact that no prior judg-ment had been rendered against the claimant and indicated thattherefore his payment to the widow had been made without com-pulsion. Whether the compromise settlement was made under le-gal compulsion or voluntarily is a matter to be decided in the ac-tion for indemnity. In most jurisdictions it is encumbent uponthe plaintiff to prove that his compromise was fair and reasonableand that he was legally liable to the injured person,18 but in atleast one state the compromise itself is prima facie evidence ofthe fairness of the settlement- and of the liability of the plaintiffto the payee.19, In either case the question of compulsion is an is-sue to be litigated and determined on the merits, and the absenceof prior judgment against the plaintiff should not be a bar tothe action.It is submitted that the decision in Winfqrd v. Bullock findsno support in the jurisprudence of Louisiana and is a departurefrom the general rule of other states and of the federal system.A. M. PosmuPRESCRIPTION-CONTINUING ToRT-BURDEN OF APPORTIONMENT-Plaintiff sued for damages to his land caused by salt water, wasteoil and other refuse which flowed intermittently from the defend-ant's oil wells for four years. Defendant's plea of one year pre-scription under Article 3536 was sustained, the court being con-vinced that a greater portion of the damages occurred long priorto the period fixed for prescription. The opinion is interestingbecause of a dictum statement, the burden of proof rests onplaintiff to show what part of the damage was sustained afterthe period fixed for prescription. Parro v. Fifteen Oil Company,26 So. (2d) 30 (La. App. 1946).17. City of Wabasha v. Southworth, 54 Minn. 79, 55 N.W. 818 (1893);Popkin Bros., Inc. v. Volk's Tire Co., 20 N.J. Misc. 1, 23 A.(2d) 162 (1941);Globe Indemnity Co. v. Schmitt, 142 Ohio St. 595, 53 N.E.(2d) 790 (19-44);Aberdeen Constr. Co. v. City of Aberdeen. 83 Wash. 429, 147 Pac. 2 (1915).18. Smith v.. Foran, 43 Conn. 244. 21 Am. Rep. 647 (1875); Inhabitants ofSwansey v. Chace, 82 Mass. 303 (1860): Frank Martz Coach Co., Inc., v.Hudson Bus Transportation Co., Inc., 133 N.J.L. 342, 44 A.(2d) 488 (1945);Globe Indemnity Co. v. Schmitt, 142 Ohio St. 595, 53 N.E.(2d) 790 (1944);Aberdeen Constr. Co. v. City of Aberdeen, 83 Wash. 429, 147 Pac. 2 (1915).14 See Miles v. Southeastern Motor Truck Lines, Inc., 295 Ky. 156, 173S.W.(2d) 990 (1943).1. Art. 3538, La. Civil Code of 1870.1947]

Indemnity - Right of Master Against Servant - Necessity of Prior Judgment Against Claimant

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Indemnity - Right of Master Against Servant - Necessity of Prior Judgment Against Claimant

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