Cоmplainants, Mary Lee Owens and Jerry Sanders, were passengers upon a public *98 bus - and were injured when the bus was struck from the rear by a tank truck, owned and operated by Edgar Linkenhoger. They instituted suits against New Amsterdam Casualty Company, insurer of the bus, and Edgar Linkenhoger and American Fidelity and Casualty Company, Inc., his insurer. The insurer of the bus will be hereinafter referred to as Amsterdam and the parties concerned with the truck as Linkenhoger. The causes were consolidated for the purpose of trial, and upon the triаl the jury found in favor of the complainants and against Linkenhoger, discharging Amsterdam from all liability. Linkenhoger assigns as error the action of the Court denying his motion for judgment notwithstanding the verdict, or in the alternative, for indemnity against the bus company, or in further alternative, for contribution, or further for the grant of a new trial, and the giving by the trial Court of charges to the jury requested by Amsterdam and' the failure to give charges requested by the appellant Linkenhoger as' to issues between him and Amsterdam. So far as the complainants аre concerned, the only error assigned here is that the .verdict is excessive.- ' Determination of- questions presented by the appeal depend in part for solution upon the posture of the case presented by the pleadings, but there is no reason for a full recital of the long and detailed allegations of the complaints, the answers, or the cross claims interposed by Linkenhoger against Amsterdam. Complainants alleged that Amsterdam’s insured ■was- negligent in . stopping the bus with some three feet of the rear end extending out upon the -concrete pavement and that Linkenhoger was jointly and concurrently negligent in the operation of his truck whereby it was permitted to run into the bus projecting upon the highway. Linken-hoger by answer denied all allegations of negligence against him, admitted the negligence charged against Amsterdam, and by way of further answer detailed his contention as to the manner in which the collision occurred and of the negligence on the part of the operator оf the bus by which it was stopped with its. left rear end projecting upon the highway, and which because of the color of the bus and the condition of the highway and traffic, as detailed, created an optical illusion that the entire highway was unobstructed, and that this negligence was the sole proximate cause of the collision. Expressly assuming the position of complainants in cross claim, naming Amsterdam as defendant in cross claim, and adopting the allegations of negligence in his answer, Linkenhoger sought judgment against Amsterdam for whatever amount the original complainants might recover against him, and in -the alternative, in the event his driver should be founfl guilty of negligence proximately contributing to the collision, that he have judgment over against Amsterdam for contribution of one-half of any amount which might be awarded the original complainants. Amsterdam by a pleading entitled answer an'd answer to cross claim, denied all allegations of negligence against it, and admitted that the collision was caused by the negligence оf Linkenhoger. In the same pleading, after answering the numerous articles ,of the complaints and cross claims, plead its contentions as to the facts, and alleged the collision was caused solely by - the negli-' gence of the truck driver. The case thus involves the claims and rights of the original complainants as against two defendants as joint tortfeasors, the defenses of these defendants against the complainants, and their rights as between themselves in attempting to escape liability to the complainants, and further, the right of the cross complaining defendant against his codefendant, but with which the original complainants are not concerned.
The original complainants made no motion for a new trial nor have they prosecuted an appeal, and so far as they are concerned, the verdict and judgment in their favor against Linkenhoger has become final. Linkenhoger has appealed, naming the original complainants and Amsterdam as appellees. Amsterdam moves, in which complainants join, to dismiss the appeal for the reasons, as contended, that since a judgment in solido was sought against the defendants as joint tortfeasors, 1 and the judgment relieved one from liability, it cannot be questioned on appeal taken by *99 the defendant cast in the judgment; further, that it is only where the joint tort-feasors are cast in solido that there is any right of contribution; and further, that there is no right of indemnity because the case is not one where the defendant cast was only technically or constructively at fault.
We are of the opinion that while, for reasоns hereinafter to be stated, many of the assignments of error asserted by Link-enhoger against Amsterdam may not now be urged by Linkenhoger, his appeal nevertheless presents matters, even if not meritorious, for determination. We refer particularly to the contention that the evidence shows as a matter of law that the negligence of Amsterdam was the sole proximate cause of the collision, and that the verdict is excessive. We therefore overrule the motion to dismiss-.
This appeal prеsents questions involving the application of the Federal Rules of Civil Procedure, 28 U.S.C.A., and their proper adjustment with the substantive law of the State of Louisiana in asserted causes of action dependent for validity upon the substantive law of that Stale. The Federal Court has jurisdiction only because of diversity of citizenship and the amount in controversy. It presents another aspect of the sometimes difficult problem of determining the shadowy dividing line between what is procedural rule and what is substantive law. Regаrdless of other distinctions, or grounds of solution in general, we may safely premise that to the extent that a Federal procedural rule is employed to afford a means to secure a right not permitted by the substantive law of the State in which the Federal Court sits, and to achieve a final adjudication of liability not authorized by the substantive law of the State of the forum, to that extent it represents an enlarged declaration and enforcement of substantive law. The command of Erie R. Co. v. Tompkins,
We conclude that under the facts of this case and the law applicable thereto, Link-enhoger has no standing to urge any of what might he termed substantial questions of error favoring his codefendant; that those proper for consideration are not meritorious, and that therefore no ground authorizing reversal of the judgment appealed from is presented.
The Federal procedural rule relied upon by Linkenhoger as the fundamental basis for the assertion of his rights is Rule 13 (g).
3
However, the provisions of this rule must be applied so as to do no violence to the substantive law of Louisiana. While the question is not entirely free from doubt, we are of the opinion that Linkenhoger has now no valid claim against Amsterdam,
*100
either that it is liable to him for all or part of the claims asserted against him by the original complainants. No authority direсtly in point has been presented or discovered. We must therefore consider the substantive Louisiana jurisprudence as providing and controlling the respective rights of complainants, the defendants proceeded against for a judgment
in
solido, and the rights of these defendants as among themselves. One of our brothers of the United States District Court, Judge Porterie, has had occasion to express his opinion in ruling upon some aspects of the questions involved in Gray v. Hartford Accident & Indemnity Co., D.C.,
We find it clearly established by the rulings of the Louisiana Courts, in holdings in some instances by analogy, and in others directly, that there is possessed by the plaintiff seeking a recovery for injuries sustained as the result of the joint and concurrent negligence of defendants who have been guilty of active negligence which concurred in producing injury to the plaintiff, a right of election of the defendant or defendants against whom he chooses to proceed. If he abandons, voluntarily or involuntarily, his action against one, the оther or remaining joint tortfeasor defendant may not complain. This- principle is directly applicable here since the judgment discharging Amsterdam has been permitted by the plaintiff to become final so that the plaintiff has no further claims or demands against this defendant growing out of this collision. We also determine the Louisiana jurisprudence to be that the right of contribution between joint tortfeasors arises only in the event that such joint tortfeasors have been cast by judgment in solido, since each defеndant is liable for the whole damage and the injured party may sue either or both, and neither has any right as against the other prior to the imposition of a judgment in solido and its payment by the defendant seeking contribution.
While for the purpose of clarity we have stated the propositions separately, they are in effect so interdependent in logic and result as to be together the representation of a total legal consequence. Stated another way, as the result of such acts of negligence as are here involved, each of the joint tortfeasors is liable for the whole of the damages, and thus the plaintiff may proceed against one or both, and neither has any right as against the other. A determination of the right of election by the plaintiff in such a situation in Louisiana is found in Chaney v. Hutches, La.App.,
Certainly the rulings to which we have just adverted demonstrate that the substantive law of Louisiana is that as held in Quatray v. Wickеr, supra, the right of contribution between joint tortfeasors exists only in behalf of one of the joint tort-feasors who is compelled to pay damages awarded by judicial decree against both
in solido.
In that case it was stated [
. The Louisiana jurisprudence is not contrary to the rule prevailing generally. As stated in 18 C.J.S., Contribution, § 11, page 14, and supported by authorities from many jurisdictions, including Quatray v. Wickеr, supra, “Apart from statute, the general -rule * * * is that one of several wrongdoers, who has been compelled to pay the damages for the wrong committed, cannot compel contribution from the others who participated in the commission of the wrong. This is a rule not only of the common, but of the civil, law, * * The common law rule is said to be abrogated by various statutes which confer a right of contribution in cases brought within their terms. This text further states that “The conditions stated in the particular statute must exist before the right to contribution is given.” We think the rule in Quatray v. Wicker constitutes in effect a statute, or at least, in the light of the Louisiana jurisprudence, a declaration of the conditions which must exist before the right of contribution may be enforced between joint tortfeasors. This is the construction given a statutory provision in other States wherein it is held, as we do here as to the Louisiana law, that the right of action for contribution does not exist as between joint tortfeasors guilty of concurrent negligence which is the рroximate cause of the plaintiff’s injury unless and until a judgment in solido has been rendered against the codefendants. 6 Making application of the substantive law of Louisiana, we have the situation that the plaintiffs have accepted the verdicts absolving Amsterdam from liability, and thereby so far as the plaintiffs are concerned, it is legally impossible that a judgment casting Linken-hoger and Amsterdam in solido can ever be secured. Thus the rule of Quatray v. Wicker, supra, cannot be brought into play. Each of the errors assigned which are of sufficient substantiality to require consider *103 atiоn, or to in any possible event justify a reversal of the judgments, are in favor of Amsterdam. Viewed most favorably to Linkenhoger’s contentions, these errors resulted in Amsterdam being' discharged from liability. However, Linkenhoger cannot complain of these errors as against the plaintiffs, for the plaintiffs are entitled to hold either one or both of the joint tort-feasors, if they be such, and even if not, to hold Linkenhoger alone, if the evidence be sufficient to support the verdicts in their favor against him.
So far as any alleged errors in favor of his codefendant are concerned, he cannot complain, for in the absence of a judgment against the defendants in solido, he has no right of contribution and furthermore, since his obligation as a joint tortfeasor makes him liable for the entire damages, so that he has no right to assert the erroneous dismissal prior to verdict, or by errors inherent in the verdicts by which such abandonment or discharge is effected, he can likewise not complain of errors alleged to have induced the absolvement or discharge of his codefendant, Amsterdam.
We have emphasized the legal relationship between the defendants in the event that they were joint tortfeasors, for it was upon this basis that they were sued by the complainants and, while it is unnecessary to make a binding determination that such was the true relationship u'nder the evidence, from a practical standpoint, the evidence nevertheless points to this conclusion. In either event, the complainants’ judgments against Linkenhoger are, under the record here, subject to attack by Linkenhoger upon only two grounds,— the contention that the evidence shows as a matter of law that the negligence of Amsterdam was the sole proximate cause of complainants’ injuries, and consequently there is no sufficient evidence of Linkenhoger’s negligence to support the judgments and additionally, that the verdicts are excessive. There is no ground for a determination that the verdicts against Linkenhoger are without support in the evidencе, or stated another way, for holding that the evidence shows as a matter of law that the negligence of Amsterdam was the sole proximate cause of complainants’ injuries and that therefore the verdicts against Linkenhoger should be set aside. The question of the amount to be awarded in the trial Court, and the assignment of error that the damages were excessive, presents, nothing for consideration by this Court. Texas-Pacific-Missouri Pacific Terminal Railroad of New Orleans v. Welsh, 5 Cir., 1950,
There remains for consideration the validity of the claims asserted by Linkenhoger against Amsterdam by his cross-claim seeking contribution or indemnity. What we have already said disposes of the right to claim contribution, and the fact that the cross-claim is supposed to be predicated upon Rule 13 of the Federal Rules of Civil Procedure does not change the matter since, as we have determined, there does not, and cannot, exist any right of contribution between Linkenhoger and Amsterdam through the employment of Rule 13 as the foundation for a retrial of the matter and in effect provide a remedy not authorized by the substantive jurisprudence of Louisiana. The rule does not, and cannot, create a cause of aсtion which would permit a claim to be asserted in a Federal Court merely as the result of the accident of the diversity of citizenship of the parties, which could not be enforced in the State Courts. Of course no useful purpose could be served by the grant of a new trial to assert an alleged cause of action which is not maintainable. As to the remaining claim by Linkenhoger that he is entitled to pursue his claim for indemnity against Amsterdam, we find no warrant for such a suit in the Louisiana jurisprudence. The Louisiana authorities cited by Linkenhoger, of which Appalachian Corp. v. Brooklyn Cooperage Co.,
The trial Court did not err in overruling the motions for directed verdicts or in refusing to grant the motions for judgments notwithstanding the verdicts. As to the appellee Amsterdam, the errors assigned by appellant Linkenhoger show no ground which may be now asserted to reverse the judgments of the trial Court discharging Amsterdam from liability, and accordingly the judgments should be, and are,
Affirmed.
Notes
. Ragan v. Merchants Transfer and Warehouse Company,
. Cf. Klaxon Co. v. Stentor Electric Mfg. Co.,
. “Cross-claim Against Co-Party. A pleading may state as a cross-claim any claim by one party against a co-party arising out of the transaction or occurrence that is the subject matter either of the original action or of a counterclaim therein or relating to any property that is the subject matter of the original action. Such cross-claim may include a claim that the party against whom it is asserted is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant.”
. Reid v. Montieello, supra.
. See also, Winford v. Bullock,
. Brown v. Cranston, 2 Cir.,