189 A. 693 | Pa. Super. Ct. | 1936
Argued October 14, 1936. The questions raised on this appeal involve the right of contribution between joint tort feasors against whom a judgment has been recovered, and, more particularly, the measure to be applied if contribution is allowed.
Dorothy Keebler Parker brought an action in trespass against Marion W. Rodgers, Robert Glenzinger and Margaret Paugh to recover damages for an injury sustained in a collision between an automobile owned and operated by Rodgers and an automobile owned by Mrs. Paugh and driven by Glenzinger. A trial by jury resulted in a verdict of $6,000 for plaintiff against the three defendants. Harleysville Mutual Casualty Company, *50 which had insured Mrs. Paugh as owner of one car and Glenzinger who was operating it, paid to plaintiff one-half of the judgment, $3,000 with interest. Defendant Rodgers then paid the remaining one-half by purchasing the judgment for $3,000 and interest, and causing it to be marked to the use of Charles T. Bunting. It appeared that Bunting was acting for the insurance carrier of Rodgers, but the fact that this is a contest between the respective insurance companies in no way affects the questions involved. Bunting then issued an attachment execution naming Harleysville Mutual Casualty Company as garnishee to recover contribution on the theory that as among the defendants each was liable for one-third of the whole judgment. The garnishee, contending that Mrs. Paugh and her driver were liable as to Rodgers for only one-half of the judgment, took a rule to show cause why the judgment to use should not be stricken off, the attachment quashed and the prothonotary directed to mark the judgment satisfied. An answer was filed and after argument the rule was made absolute when an appeal was taken to this court. We are of the opinion that the court below correctly disposed of the matter.
We will first consider the question which goes directly to the merits of the controversy and later refer to a technical defense raised for the first time in this court. We will assume, as the court below and the parties have, that the facts bring this case within an exception to the general rule that contribution may not be enforced among joint tort feasors, which exception was recognized in the case of Goldman v. Mitchell-Fletcher Co.,
"The doctrine of contribution rests on the principle that, when the parties stand in æquali jure, the law requires equality, which is equity, and one of them shall not be obliged to bear a common burden in ease of the rest. . . . . . [It] comes from the application of principles of equity to the condition in which the parties are found in consequence of some of them, as between themselves, having done more than their share in performing a common obligation": 13 C.J. 821. "Contribution is bottomed and fixed on general principles of natural justice, and does not spring from contract": Dering v. Earl of Winchelsea, 1 Cox 318, cited with approval in Armstrong County v. Clarion County,
The question now raised arises by reason of the fact that the three judgment debtors here involved were not in the same class. The rights of the plaintiff against the defendants and the rights of the defendants inter sese are not the same. The claim of the plaintiff was based on a tort and she was privileged to exact payment of the whole sum from any one or more of the defendants, while the claims of the defendants among themselves are founded on the application of equitable principles and do not sound in tort. We recognized this distinction in the case of Feldman v.Gomes,
This case, as we have said, is to be differentiated from others by the fact that the defendants are not all in the same class. They were properly joined by the plaintiff in one action which could not have been done prior to the passage of the sci. fa. act providing for joining additional defendants: Williams v.Kozlowski,
Rodgers and Glenzinger were the persons who committed *53 the actual tort or wrong as distinguished from a legal tort. Mrs. Paugh was not present when the accident occurred, but was only liable as the master of her servant and driver, Glenzinger. It was not alleged nor shown that she was personally and directly guilty of any trespass or was responsible by reason of anything which she personally did or omitted to do. Her responsibility even to the plaintiff did not arise from any act which was on her part morally wrong, but her liability was based on a legal principle that has become a part of the positive law of the Commonwealth that the negligence of a servant acting within the scope of his employment is imputed to the master. We agree with the learned judge of the court below that Mrs. Paugh's liability being purely derivative and because she and the driver are responsible to the plaintiff for one and the same act of negligence committed by the servant alone, both reason and justice require it to be held that Rodgers is not entitled to contribution since he has paid but one-half of the judgment.
In this connection it is to be observed that as between Mrs. Paugh and her driver she was entitled to recover from the driver the amount she was compelled to pay through his sole fault: 6 R.C.L. § 18, p. 1058; Note to Robinson v. Paducah, 40 L.R.A. (N.S.) 1153 et seq. That the principal and agent in the circumstances here present should not be obliged to contribute separately is in accord with the principles of contribution followed in cases where no tort was involved. See Com. v.American Surety Co.,
The appellant also raises in this court for the first time the contention that the court did not have the right to quash the attachment since there was no defect, it is alleged, in the record rendering the attachment proceeding irregular or void, relying on Pasquinelli v. Southern Macaroni Mfg. Co.,
Judgment affirmed. *55
