230 A.D. 332 | N.Y. App. Div. | 1930
The actions arise out of a collision between an automobile owned by the Highway Products and Manufacturing Company and a truck owned by the defendant Deglique. The automobile was being driven with the owner’s consent by one Lane. The truck was being driven by a general employee of its owner and was being used in the business of the defendant Bero Engineering
The defendant Bero Corporation made a motion in each action under section 193, subdivision 2, of the Civil Practice Act to bring in the Highway Products Company and Lane as parties defendant. From orders denying the motions defendant Bero Corporation appeals. For convenience we shall refer only to the wife’s action. The decision will apply to both.
The complaint asks damages for personal injuries alleged to have been caused solely by the negligence of the defendants. It goes further and negatives in detail and with particularity any negligence, concurrent or otherwise, on the part of the driver and of the owner of the automobile in which plaintiff was a passenger. The decision below rests on the view that the “ plaintiff should have a right to try her cause of action against the defendants whom she has selected, and stand or fall upon the issues presented by the pleadings; ” and that under the issues there is no likelihood or “ reasonable certainty that there ever will come a time when there will be contribution.” If it were true that the plaintiff had to stand or fall on the proof of her literal allegations, we should be inclined to agree with the learned court. But it is not true. Proof that her injuries were contributed to by any negligence, concurrent or sole, on the part of the defendant, would be sufficient. (Jerome v. New York Railways Co., 190 App. Div. 311.) For the purposes of this motion it is fair, therefore, to consider the complaint as charging defendants with negligence sole or concurrent. So considered, we start with a possibility that a verdict for plaintiff may rest on a finding of the concurrent negligence of defendants and of the parties sought to be brought in. When we come to examine the affidavits used on the motion, we find conflicting versions of the manner in which the collision occurred. What was a possibility becomes, in the light of the evidence and of our experience with such cases, a probability. Where, on a motion such as this, the moving party shows that he can adduce evidence on the trial which would clearly warrant the jury in finding concurring proximate, if not sole, negligence on the part of some third person, we think he “ shows,” within the meaning and intent of section 193, subdivision 2, of the Civil Practice Act (as amd. by Laws of 1923, chap. 250), " that some third person, not then a party to the action, is or will be liable to such party wholly or in part for the claim made against such party in the action.” That liability. exists by virtue of the provisions of section 211-a of the Civil Practice Act (as added by Laws of 1928, chap. 714), provided the third person is brought into the action so that
In substantially all the cases decided under section 193, subdivision 2, of the Civil Practice Act before the enactment of section 211-a of the Civil Practice Act, two primary considerations were in the mind of the court: (a) The interests of the plaintiff to a fair and speedy trial under his immemorial privilege to sue whom he will among those jointly, concurrently or successively hable; (b) the convenience of the court in the administration of litigated business. So far as those cases were concerned with an asserted right of contribution or indemnity over, it is to be noted that the asserted right existed without reference to the presence of the contributor or indemnitor in the immediate action. The right could be enforced in a subsequent action. The purpose of the joinder sought and granted was to avoid circuity of action and to facilitate trial administration. The decisions were swayed by a balance between the inconveniences of the parties and of the court.
The considerations, where the provisions of section 211-a are involved, are different. The interests of the plaintiff remain, but no question of administrative convenience arises. If leave to bring | in the joint or concurrent tort feasor is denied, there can be no ; subsequent action over. A joint judgment is a condition precedent to the right of contribution. The second consideration, therefore, goes to the granting or withholding of a substantive right. We are to say what weight is to be given to this consideration where application is made under section 193, subdivision 2, of the Civil Practice Act. Since that section was left untouched when section 211-a of the Civil Practice Act was enacted, there is no further express encroachment on the established right of a plaintiff with reference to the joinder of defendants. Subject to the provisions of that section and to the discretion thereby vested in the court, we think the interests of the plaintiff are still of primary importance. That does not mean that they are exclusive. The legislative purpose in the enactment of section 211-a was to modify the ancient rule of law (See Peck v. Ellis, 2 Johns. Ch. 131), under which there was no contribution between joint tort feasors who were in pari delicto. We may assume, perhaps, that to the more tolerant 1 modern mind the morality of that old doctrine seemed too stark and austere to be just. Mercy there may be even to a wrongdoer, >
The decision of this court, or rather some of the language used in the opinion of this court in Greenhouse v. Rochester Taxicab Co. (218 App. Div. 224), has been pressed to our attention in support of the order made below. That language, of course, is to be taken in connection with the facts as they appeared in that case, which was decided before the enactment of section 211-a of the Civil
The orders should be reversed, with ten dollars costs and disbursements, and the motions granted. Supplemental pleading to be framed and served by the moving defendant. (See Hailfinger v. Meyer, supra, and Bozzuffi v. Darrieusecq, 125 Misc. 178.)
All concur. Present — Sears, P. J., Crouch, Taylor, Thompson and Crosby, JJ.
In each case: Order reversed, with ten dollars costs and disbursements, and motion granted, without costs.