196 S.W.2d 919 | Ark. | 1946
Joint liability of $30,250 was adjudged against Missouri Pacific Transportation Company and Mrs. John Leonard. Commercial Casualty Insurance Company carried the bus company's risk and reimbursed its client to the extent of $32,372.64, inclusive of interest and cost. The appeal is cited as Missouri Pacific Transportation Company v. Simon,
Mrs. Leonard was indemnified by Hardware Mutual Insurance Company, but refused to participate in payment of the judgments. Commercial Casualty sued Mrs. Leonard and Mutual, alleging discharge of its contractual liability and asking that judgment be rendered against Mutual for $16,186.02 — half of the amount expended. To a complaint in which it was urged that contribution generally lies among joint tortfeasors who act negligently, but innocently, the court sustained Mutual's demurrer.
Appellant, while admitting there have been no Arkansas cases Sustaining its contention, thinks language in decisions ordinarily construed as supporting the settled doctrine that such contribution cannot be had, was merely expressions of the opinion-writers on a phase not germane to a determination of the issue involved. For example, in Criner v. Brewer,
In harmony with Criner v. Brewer is McCulla v. Brown
In the Nettles appeal these sentences appear: "It may be said that counsel have cited cases of the highest authority sustaining their position [that one tortfeasor may enforce contribution from another similarly situated]. We do not review these cases, nor do we decide whether they should be followed by us, for the reason that [failure to make a corporation report had by legislative amendment been made criminal]. In other words, [Nettles'] cause of action is predicated upon a violation of the criminal laws of the state, and his right of contribution must fail on that account."
In Hobbs v. Hurley,
It cannot be said that the wrong a jury found Mrs. Leonard had committed was intentional. On the contrary, there was evidence from which there could have been a holding. In her favor, and for the purpose of this opinion it may be assumed she was not a purposeful tortfeasor. Still, We are met with a rule that has been accepted since Criner and Brewer litigated in 1853, and not until 1941 was there a recognition of the obligation it is here sought to impose, although much may be said for appellant, s position when it is viewed from the standpoint of abstract equity. *578
The collision resulting in judgments obligating Commercial Casualty occurred in 1938. Following trial in March, and appeal, this court's opinion was delivered November 27, 1939.
Act 315 of 1941 was approved March 26. It is entitled, "An Act concerning contribution among tortfeasors, release of tortfeasors, procedure enabling recovery of contribution, and making uniform the law with reference thereto." Subsection 1 of 2 reads: "The right of contribution exists among joint tortfeasors."
There is comment in Schultz v. Young,
Whatever may be said in respect of the equities between carriers of liability where joint tortfeasors are involved and certainly argument in favor of contribution is not without merit in those cases where the damage was occasioned unintentionally and no law was violated — it appears to have been settled prior to 1941 that contribution did not exist. This situation was seemingly recognized by the General Assembly; but, since the transaction now before us occurred prior to the enactment, terms of that measure are not retroactive and cannot avail here.
If it be conceded that in an appropriate case justice, acting through a court of equity, would have the power *579 to prevent one from being unjustly enriched at the expense of another, (consider "Contribution and Indemnity Between Joint Tortfeasors," by Robert A. Leflar, 81 University of Pennsylvania Law Review, p. 130)3 the question arises whether appellant has brought itself within the terms of Act 196, approved March 23, 1927.4
We are cited to Home Insurance Company v. Lack,
When it adopted the 1927 act heretofore mentioned, the General Assembly undertook to safeguard rights of persons who were injured through the tortious conduct of another. But there are certain limitations. Even between the injured plaintiff and the defendant's insurance carrier a direct action does not lie "until after an execution [against the tortfeasor] is returned unsatisfied." This rule was announced in Universal Automobile Insurance Co. v. Denton,
The complaints allegation regarding liability is that Commercial Casualty had discharged the entire judgment; that Mrs. Leonard was insured by Mutual, and that she had "failed and refused to pay" any part of the obligation. It is further said that Mutual agreed to indemnify Mrs. Leonard "from liability imposed by law" arising out of injuries received by the public. There is no claim that an execution had been issued, or that legal recourse against Mrs. Leonard had been futile — only that she "failed and refused to pay." This is not sufficient under Act 196 and the decisions construing it.
In discussing Act 196 we do not mean to say that appellant rested its right of recovery on that law. On the contrary, the theory was equitable contribution, irrespective of statutes. The failure to allege that Mrs. Leonard was insolvent does not control the issue, because in any event we would feel that the law, as construed from 1853 to 1927, should be reasserted.
Affirmed.