LUTZ et al.
BOLTZ et al.
Action for damages arising out of automobile collision. Defendant driver moved to amend answer to file counterclaim against plaintiff driver by charging plaintiff with negligence. The Superior Court, New Castle County, Carey, J., held that where guests and host brought action against third person, third person could not under statute entitling joint tort-feasor to money judgment for contribution where he has by payment discharged ‘ common liability’ or has paid more than his pro rata share thereof, maintained counterclaim for contribution against host, on theory that host contributed to guests' injury, in absence of allegation that host's negligent conduct was wilful or wanton, in view of automobile guest statute
[48 Del. 198] Suit for damages arising out of an automobile accident.
The defendant, driver of one of the vehicles, moved to amend his answer by filing a counterclaim against the plaintiff, Martin E. Lutz, driver of the other vehicle. The amendment charges Lutz with negligence, but contains no allegation of wilful or wanton conduct. The pleadings indicate that the other three plaintiffs were guest passengers in the vehicle driven by Martin Lutz. The counterclaimant seeks contribution from that plaintiff in the event the others recover a judgment against the defendant.
Counsel for the plaintiffs has objected to the proposed amendment.
Joseph H. Flanzer, Wilmington, for plaintiffs.
William Prickett, Wilmington, for defendant Ammon J. Boltz.
In order to get at the merits of the present controversy, I shall not consider the propriety of raising this issue by an objection to the filing of the proposed amendment.
The question for determination is whether a tort-feasor may recover contribution from another, whose negligence concurred in producing an injury, but who is himself not liable to the injured person.
Title 21 Del.C. § 6101 bars a recovery by a nonpaying guest from the operator of a vehicle, unless the accident was intentional on the part of the operator, or was caused by his wilful [48 Del. 199] or wanton disregard of the rights of others. In the proposed counterclaim, there is no charge of any such intentional, wilful or wanton conduct; it is clear, therefore, that the other three plaintiffs would have no cause of action against Martin Lutz for their injuries. The defendant does not dispute this.
Prior to 1949, no right of contribution existed between joint tort-feasors in this State. Distefano v. Lamborn, Del.Super., 81 A.2d 675, and Del.Super.,83 A.2d 300.
In that year, the Uniform Contribution Among Tort-feasors Act was adopted with some modifications. It was carried into the Code of 1953 as Title 10, Chapter 63. Any right of this defendant to contribution from Lutz necessarily, ...