DISTEFANO et al.
LAMBORN et al. (HUBER BAKING CO., third party defendant).
Suit by Giulio Distefano, and others, against West T. Lamborn,
and others, for injuries sustained by plaintiffs while working on construction
of a building on ground that negligence of defendants occasioned injuries to the
plaintiffs. The defendants' motion to join the Huber Baking Company as a third
party defendant was granted and the third party defendant moved for summary
judgment on the theory that it was liable only to the third party plaintiff and
liability would be on theory of contribution among joint tortfeasors and since
there was no right of contribution among joint tortfeasors at time action was begun its motion for summary judgment must be granted. The Superior Court, Layton, J., held that prior to the enactment of the Uniform Contribution Among Tort-Feasors
Act no right of contribution existed between joint tortfeasors and that right of contribution granted by the Uniform Act is substantive and that being so, right to contribution, as distinguished from right to institute an action for contribution, attaches at time of the accident and Uniform Act passed subsequently thereto did not control.
Third party defendant's motion for summary judgment granted.
Under Uniform Contribution Among Tort-Feasors Act, right to contribution granted being substantive, right to contribution as distinguished from right to institute an action for contribution, attaches at time of accident and Uniform Act passed subsequently thereto does not control. 47 Del.Laws, c. 151, § 2(2); Rules of Superior Court, rule 14(a); Fed.Rules Civ.Proc. rule 14(a), 28 U.S.C.A.
[46 Del. 196] The individual Plaintiffs, employees of Frank C. Sparks Co., a sub-contractor, were injured while working on the construction of a building of Huber Baking Company. Liberty Mutual Insurance Co., the insurance carrier for both Sparks and Huber, having paid Workmen's Compensation payments to the individual Plaintiffs, proceeded as subrogee to institute suit in their names against West T. and Robert W. Lamborn and McCormick Construction Co., Inc., two other sub-contractors on the same job, alleging that their negligence occasioned the injuries to the individual Plaintiffs. The Lamborns and McCormick, feeling that Huber was either jointly or wholly liable for the injuries complained of, and Liberty, for obvious reasons refusing to join the latter as a co-defendant, moved to join Huber as a Third Party Defendant in the action. This application was considered and granted ex parte under Rule 14(a), identical with the Federal Rule of Civil Procedure 14(a), 28 U.S.C.A. Huber has filed this motion for summary judgment upon the theory that, under Rule 14(a), a Third Party Defendant is liable only to the Third Party Plaintiffs; that if liable it
would be upon the theory of contribution among [46 Del. 197] joint tortfeasors
and that since there was no right of contribution among joint tortfeasors at the time this action was begun, its motion for summary judgment must be granted.
William Poole, Thomas J. Healy, Jr., and John VanBrunt, Jr., all of Wilmington, for defendants, third party plaintiffs.
William Prickett, of Wilmington, for third party defendant.
Third Party Plaintiffs concede the general principle
that no right of contribution exists between joint tortfeasors, but argue that the Rule is subject to numerous exceptions, among which is that where the negligences
charged are passive, in contradistinction to deliberate or wilful, an action
of contribution may be maintained by a joint tortfeasor who has paid all or more than his pro rata share of the judgment. This exception to the general rule, they contend, is applicable here.
Any discussion of the subject necessarily leads back to the case of Merryweather v. Nixon, 101 Eng.Rep. 1337, which seems to be the leading case on this question. There, two defendants committed a joint trespass upon a mill property and a judgment was returned against both. Plaintiff elected to collect the entire judgment from Merryweather who then brought action for contribution against Nixon, his co-defendant. He was non-suited and on his motion to set aside the judgment of non-suit it was held by Lord Kenyon, C. J., that
‘ There could be no doubt but that the non-suit was proper: that he had never before heard of such an action having been brought, where the former recovery was for a tort: that the distinction was clear between this case and that of a joint judgment against several defendants in an action of assumpsit; and that this decision would not affect cases of indemnity * * *’ .
This decision is important for two reasons (1) It is the first published case laying down the Rule and (2) It was obviously restating what had been the English Law for a long period of time, for Lord Kenyon said ‘ he had never before heard of such an action having been brought where the former recovery was for a tort.’
[46 Del. 198] The last phrase in the opinion, which is unfortunately somewhat obscure, is discussed in 14 Harv.Law Review 350(n.6), where is is explained that Lord Kenyon had in mind the class of cases in which A innocently commits a tort at the request or for the benefit of B. A would clearly be entitled to indemnity. This had already been decided in Fletcher v. Harcot, Hutton 55, 123 Eng.Rep. 1097(1622). In that case the plaintiff, an innkeeper, at the request of the defendant sheriff, had kept overnight a prisoner. The prisoner sued the plaintiff and recovered damages for false imprisonment and the plaintiff was awarded indemnity from the sheriff. Adamson v. Jarvis, 130 Eng.Rep. 693, apparently questions the rule of Merryweather v. Nixon. There an auctioneer was deceived into selling goods represented by X as being his. Later the actual owner appeared and recovered judgment against the auctioneer who, thereafter, recovered by way of contribution against X. The Court said:
‘ * * * and from the concluding part of Lord Kenyon's judgment in Merryweather v. Nixon, and from reason, justice and sound policy, the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he was doing an unlawful act.’
But Adamson v. Jarvis and Fletcher v. Harcot are so similar on their facts as to render it quite probable that the former case would come within the exception mentioned by Lord Kenyon. Another apparent exception to Merryweather v. Nixon seems to have grown up in this country in cases involving the doctrine of respondeat
superior and other similar situations where one joint tortfeasor is
entitled, not to contribution, but to indemnity from another joint tortfeasor under circumstances ...