Caldwell, Charles W.

English

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Volume 39 Issue 1 Article 11 December 1932 Contribution--Where One Joint Principal Pays Tort Judgement Against Agent Charles W. Caldwell West Virginia University College of Law Follow this and additional works at: https://researchrepository.wvu.edu/wvlr  Part of the Agency Commons, Estates and Trusts Commons, and the Torts Commons Recommended Citation Charles W. Caldwell, Contribution--Where One Joint Principal Pays Tort Judgement Against Agent, 39 W. Va. L. Rev. (1932). Available at: https://researchrepository.wvu.edu/wvlr/vol39/iss1/11 This Recent Case Comment is brought to you for free and open access by the WVU College of Law at The Research Repository @ WVU. It has been accepted for inclusion in West Virginia Law Review by an authorized editor of The Research Repository @ WVU. For more information, please contact ian.harmon@mail.wvu.edu. WEST VIRGINIA LAW QUARTERLYferring this priority unconstitutional as impairing contractualobligations.' There is an increasing sentiment against thispreference because of its obvious unfairness!'-KNGsLEY R. SMITH.CONTRIBUTION - WHERE ONE JOINT PRINCIPAL PAYS TORTJUDGMENT AGAINST AGENT. - A tract of land was owned jointlyby A and B, as executors and trustees of the estate of X, by C,and by D. An agent, Drebert, had charge of the land for all theowners when a tenant, Massey, was killed by electrically chargedwire. In an early action a judgment was recovered by the personalrepresentative of the deceased against A and B, as executors andtrustees. This was reversed,1 as a trust estate is not liable for thetorts of the trustees who are free from the control of the benefi-ciaries. Thereafter, another suit was instituted against A and B.and the agent, Drebert. A and B being dismissed from thissuit upon a plea in abatement for defective service of process,judgment was taken against Drebert, which with costs was paidby A and B, as executors and trustees. In the principal caseA and B and C sued the administrator of D, since deceased, forcontribution. Held: Rulings of the trial court that contributionbetween joint tort-feasors is not permitted and that the paymentwas voluntarily made were error. Payne v. Charleston NationalBank!At common law there was no contribution between joint tort-feasors,' and because of the unjust effect of the application of therule in certain cases exceptions have developed,' and the test mostI Harris v. Walker, 199 Ala. 51, 74 So. 40 (1917) (right of depositors ofan insolvent bank held to have arisen out of a contract with the bank ascontrolled by a constitutional guaranty then in force. This was held an"obligation of a contract" which could not be impaired by either the con-stitution or a statute); Atchafalaya R. & Banking Co. v. Bean, 3 Rob. 414(La. 1843) (legislature cannot constitutionally change relative rank of cred-itors inter se by an act subsequent to the creation of the debt."See the comment on Central Trust Co. v. Bank of Mullens, 107 W. Va.679, 150 S. E. 221 (1929) in (1930) 36 W. VA. L. Q. 278.' Massey v. Payne, 109 W. Va. 529, 155 S. E. 658 (1930).2Payne v. Massey, 164 S. E. 252 (W. Va., 1932).3Merryweather v. Nixan, 8 T. R. 186, 101 Eng. Reprint 1337 (1799);TsiRoCKMORTON'S CooLEY oN TORTs (Student ed., 1930) § 81.'Where the party was only technically liable, Chicago Rys. v. R. F. Con-way Co., 219 Il. App. 220 (1920); where the ground of liability is negli-gence in carrying on a lAwful business, Harriban v. City of Des Moines, 1981Caldwell: Contribution--Where One Joint Principal Pays Tort Judgement AgainDisseminated by The Research Repository @ WVU, 1932RECENT CASE COMMENTSoften applied seems to be whether the parties must be presumedto have known that they were committing an illegal or wrongfulact.5Some states now allow contribution between joint tort-feasorsby statute.' The West Virginia statute, first adopted in 1872 andsince subjected only to slight modifications in wording by amend-ments, permits contribution only where there has been a jointjudgment rendered against the tort-feasor4. The principal case,then, was not governed by the statute.In West Virginia the question has usually arisen where twoor more tort-feasors have asked to be dismissed from an action be-cause they are in law severally liable.' The unusual situation inthe principal case, however, is probably without parallel in thereports. The cases most nearly in point0 may be distinguishedbecause the judgment in the principal case was against the agent.The judgment below declared that the agent, "was guilty ofmisfeasance in his duty to said decedent." This fact, that theagent's liability in relation to the principals was never fixed, andthe further fact that the trust estate of X was exonerated fromall liability (yet A and B paid their part of the judgment againstthe agent out of the trust estate), supports the argument that thepayment was voluntarily made. The courts and text writers speakIa. 549, 194 N. W. 988 (1925); where the tort does not involve moral turi-tude, it is the same as the right in a contract, Ellis v. Chicago & N. W. R.rI167 Wis. 392, 167 N. W. 1048 (1918) ; where the tort was that of a servantor agent, Armstrong Co. v. Clarion Co., 66 Pa. 218 (1870); and where theact was not inalum in se, Hutcherson v. Slate, 105 W. Va. 184, 192 S. E. 444(1929); Buskirk v. Sanders, 70 W. Va. 863, 73 S. E. 937 (1912)."I COOLEY ON TORTS (3rd ed., 1906) 258.'Ky. STAT. (Carroll, 1930) § 484a; N. C. CODE ANN. (Michie 1930) §618; VA. CODE ANN. (Michie, 1930) § 5779; Mo. REv. STAT. (1919) § 4223;and W. VA. REV. CODE (1931) c. 55, art. 7, § 13.SOhio Valley Bank v. Greenbaum Sons & Trust Co., 11 Fed. (2d) 91 (C.C: A. 4th, 1926).8Martin v. Appalachian Power Co., 109 W. Va. 129, 153 S. E. 245 (1930);Massey v. Payne, supra n. 1; Starcher v. Penn Oil Co., 81 W. Va. 587, 95S. E. 28 (1918); Blevins v. Bailey, 102 W. Va. 415, 135 S. E..395 (1926);Pence v. Bryant, 73 W. Va. 126, 80 S. E. 923 (1912); and Johnson v. Chap-man, 43 W. Va. 639, 28 S. E. 744 (1897).9Where the tortfeasors were two counties both liable for the maintenanceof a bridge and a judgment was rendered against one, Armstrong Co. v.Clarion Co., supra n. 2; where the negligence was the constructing of aparty wall and a judgment was entered against both tortfeasors, Ankey v.Moffett, 37 Minn. 109, 33 N. W. 320 (1887); and where the agent of twoprincipals injured a third person with an automobile and the judgment wasagainst both principals, Hobbs v. Hurley, 117 Me. 449, 104 At]. 815 (1918).10 Cooley on Torts (4th ed., 1931) 297, § 89; Acheson v. Miller, 2 Ohio St.203 (1853); Price v. Ryan & Dickinson, 255 N. Y. 16, 173 N, B, 107(1930).2West Virginia Law Review, Vol. 39, Iss. 1 [1932], Art. 11https://researchrepository.wvu.edu/wvlr/vol39/iss1/11WEST VIRGINIA LAW QUARTERLYof compelling to pay,"0 which is based on a money judgmentagainst one or all the tort-feasors. In Kentucky' the court hassaid, "There must have been a satisfaction of the judgment be-fore the suit can be entertained, as the right to contribution restson an implied contract and is enforced accordingly."As an agent is liable for -his torts, independently of his prin-cipal, and as an agent can be sued jointly with the principal whenit is shown that both were at fault,' and since only the agent maybe liable in a given case, the contention that the payment wasvoluntarily made seems sufficient to defeat the right to contribu-tion.-CHARESS W. CALDWELL.CouRTs - EQUITABLE ENFORCEMENT OF FOREIGN ALImONYDECREE. - Complainant had been granted a divorce and alimonyin a Florida Court, which retained jurisdiction. She went intoequity in Georgia and obtained a writ of ne exeat, a decree foraccrued alimony and counsel fees, and an injunction to preventdefendant from removing any of his property from the county.The court declared in general terms that the foreign decree mustbe given full faith and credit in Georgia. Roberts v. Roberts.'Courts have allowed as a matter of course the bringing ofa suit on a foreign decree for accrued alimony.' Future alimonyis not the basis for such a decree unless it be shown that theoriginal decree is not subject to modification by the foreigncourt.0 A contrary result was reached in a recent California easewhere future installments of alimony were covered by the decreethough the foreign court retained jurisdiction, it being stipulatedthat in case of modification the California decree should operatesubject thereto." These foreign decrees, whether sued upon inlaw or equity, are entitled to full faith and credit under the Fed-eral Constitution.' Though equity may grant relief on a decree"Consolidated Coach Co. v. Wright, 231 -Ky. 713, 22 S. W. (2d) 108(1929)."Lee v. Standard Oil Co., 105 W. Va. 579, 44 S. E. 292 (1828).1163 S. E. 735 (Ga. 1932).1 Sistare v. Sistare, 218 U. S. 1, 30 S. Ct. 682 (1909); Barber v. Barber, 21How. 582, 16 L. ed. 226 (1858).' Lynde v. Lynde, 181 U. S. 183, 21 S. Ct. 555 (1900).'Cummings v. Cummings, 97 Cal. App. 144, 275 Pac. 245 (1929).5$istare v, $istare, supra n. 2,3Caldwell: Contribution--Where One Joint Principal Pays Tort Judgement AgainDisseminated by The Research Repository @ WVU, 1932

Contribution--Where One Joint Principal Pays Tort Judgement Against Agent

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Contribution--Where One Joint Principal Pays Tort Judgement Against Agent

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