Lead Opinion
Thеse two cases present the question whether an unsuccessful defendant in a personal injury suit who is sued jointly with another defendant in whose favor a verdict was found and judgment entered is entitled to retry the issue of the successful defendant’s liability to the original plaintiff and, if successful in establishing such liability, to recover contribution from the successful defendant.
It is the contention here of the insurers of the unsuccessful defendants that they may relitigate the liability of the successful defendants to the original injured plaintiffs and thus establish a common liability, notwithstanding the fact that it has been finally adjudicated that there is not and never was any liability on the part of the successful defendants to the injured plaintiffs.
The successful defendants, who are appellants here, assert that the adjudication in their favor in the original actions is conclusive оf their nonliability to the original plaintiffs, and that since there is not and never was any liability on their part to such plaintiffs the essential element to justify, contribution is lacking. In support of their position they cite National Bondholders Corp. v. Seaboard Citizens Nat. Bank (4 Cir.) 110 F. (2d) 138, 144, where the cоurt said:
“Ordinarily, parties to a judgment are not bound by it in a subsequent controversy between each other unless they were adversary parties in the original action. City Bank of Wheeling v. Rhodehamel, 4 Cir.,
This rule is supported by Hobbs v. Hurley,
“In the first place, all four of these persons were joined as defеndants in the former suit, and their liability or non-liability was there determined. Judgment was rendered against Hobbs and Hurley while it was held that the action should not be main *123 tained against Gardner and Herrick. That judgment- still stands unreversed and is not open to collateral attack unless it was obtained by fraud оr unless want of jurisdiction appears on the face of the record. Toothaker v. Greer, 92 Maine, 546,43 A. 498 ; Winslow v. Troy, 97 Maine, 130,53 A. 1008 . The rights of the parties were fixed by that judgment and it constitutes the impregnable basis of this suit. Contribution must be of one-half the amount.”
See also Town of Flagstaff v. Walsh (9 Cir.) 9 F. (2d) 590, 592.
But the unsuccessful defendants here contend that this court is committed to their position.
This court has held that a judgment against both defendants in the original action is not
res judicata
as between them in a subsequent action for contribution. Kemerer v. State Farm Mut. Auto Ins. Co.
Since the payment by a plaintiff of more than his share of a common liability is the basis of an action for contribution, the lack of such common liability to the injured person on the part of the parties to the contribution action would logically seem to preclude a right to contribution. “The thing that gives rise to the liability [for contribution] * * * is that both parties were subject originally to a common liability, and one has taken mоre than his just share of the burden.” D. M. & N. Ry. Co. v. McCarthy,
It must be conceded that the judgment in favor of the successful defendant and against the injured plaintiff as between them is conclusive that there is not and never was any liability whatever on the part of the successful defendant to the injured party. No rеcovery could ever have been had by the injured party against him. Hence it would seem to follow that there could never have been a common liability. That is res judicata between the injured plaintiff and the successful defendant. In cases where the judgment is against both or all defendants, it is likewise res judicata *124 between the original plaintiff and such defendants. Is it not, then, an adjudication of such an essential element of the suit for contribution as to preclude recovery in the cases at bar?
Ankeny v. Moffett,
Mason St. 1927, § 9410, has made no change in the substantive law of contribution. It has merely supplied a summary method of procedure. Kemerer v. State Farm Mut. Auto Ins. Co.
Where, as in D. M. & N. Ry. Co. v. McCarthy,
In Hardware Mut. Cas. Co. v. Anderson,
We are cited to Merrill v. St. Paul City Ry. Co.
“This contention rests on the assertion that the directed verdict is an adjudication of the question of negligence between the code-fendants.”
The court discussed only the problem of
res judicata
and came to the conclusion that a judgment resting on the directed verdict
*125
would not be
res judicata
in an action for сontribution, basing its decision upon Bakula v. Schwab,
In the Bakula case a verdict was erroneously directed against one of two defendants chargеd with negligence. The court took the position that there was a distinction between contribution cases based upon common contract liability and those arising out of torts. It conceded that in contract cases (
Subsequently, in Wait v. Pierce,
“In the Bakula Case, supra, there was no crоss-complaint and no issue was made between the codefendants. It was therefore held that the defendant Schwab was not concluded by the judgment in Wilkinson’s favor. So far as the Bakula Case holds that where one joint tortfeasor discharges more than his equitable share оf a liability resting upon him and another joint tortfeasor by a single judgment, the question of liability of the other joint tortfeasor to the plaintiff is not res adjudicata, it must be and is modified.” (Italics supplied.)
This subsequent holding was not before this court in the Merrill case,
It is quite true that the right to contribution arises out of the relationship оf the parties to an original transaction. In contract cases the common liability arises out of the relationship created by the original agreement, express or implied; but in tort cases the original common liability must be established in some way — • in contested cаses by adjudication of such liability as between the injured person and the alleged tortfeasor. In cases which have not gone to judgment the question is open, as in D. M. & N. Ry. Co. v. McCarthy,
“* * * the right of action for contribution must necessarily grow out of the causes of action in favor of the injured passengers against both” alleged tortfeasors.
If there is no cause of action arising out of the tort against the person from whom contribution is sought, there can be no resulting right to contribution; and when the courts have adjudicated that there was no such cause of action there can be no right to *127 contribution accruing to the guilty tortfeasor. Consolidated Coach Corp. v. Burge, supra,.
Many cases are citеd to us where the fact has been ignored that a suit for contribution is an action derived from a common liability arising out of a relationship originally assumed by contract or arising from common responsibility to the victim of a tort. Those cases we do not follow. Where it has been adjudicated that there never was any responsibility of the defendant to the injured person, there is absent that common liability which is the fundamental basis for contribution. Cases in regard to res judicata as between codefendants in tort cases arising where the question of the application of the rule as to intentional or willful wrong was involved and common liability to the injured person had been adjudicated are not in point. It was perhaps to be expected that broad expressions in regard to the effect of the judgment as between the injurеd person and the defendants should creep into the opinions in such cases. However that may be, sound reason would seem to dictate that where, as between the injured person and a codefendant, it has been finally adjudicated that there is no liability, an action for contribution will not lie; and any expressions in any of our opinions which tend to support the theory that such a judgment is of no effect and that the unsuccessful defendant may relitigate the liability of the successful defendant to the injured person should be and are overruled. Such a judgment is res judicata upon any essential element of a claim or action subsequently brought by one of them against the other.
The order overruling the demurrer and that denying the motion for judgment notwithstanding the verdict are both reversed.
Concurrence Opinion
(concurring).
Agreeing in the result and all that is said in support of it, I must yet ask libеrty to restate the gist of the problem as it appears to me.
A judgment in personam, is always admissible in evidence “to establish the mere fact of its own rendition, and those legal consequences which result from that fact.” 10 R. C. L. p. 1116, § 323. *128 20 Am. Jur., Evidence, p. 848, § 1001; 3 Dunnell, Dig. & Supp. § 5154.
This rule was applied in Pabst Brg. Co. v. Jensen,
“The rule is well settled that a judgment, in personam, at least, of a court of competent jurisdiction, may be оffered in evidence in a subsequent suit as evidence of its own existence, and of its legal effects, to prove which it is admissible for and against strangers, as well as for and against parties and privies.”
To illustrate: A’s claim against B for a commission on the sale of real estаte may depend upon the existence of a contract for the sale of it between B as vendor to C as vendee. Now if, in an action between B and C, it is decided that there is no such contract and never was, that issue is settled as to all the world. If A, thereafter, sues fоr a commission on the deal, he cannot recover, simply because the judgment between B and C has determined finally the nonexistence of the contract which was condition precedent to the validity of his claim for a commission.
That, it appears to me, is thе whole case. The defendants who were successful in the original actions may use the judgments therein as conclusive evidence that they were never liable to the plaintiffs. That fact established, the inescapable conclusion is that the unsuccessful defendants, in discharging the liability established against them by judgment, were not discharging the joint obligation of themselves and the successful defendants. Hence there should be no contribution.