*1 installments, when work was finished. The im- portant thing proceed correctly that the work expeditiously. majority opinion respondent’s prede- attacks the ignoring disciplinary
cessors in office for (A) (3). predecessors 6-101 If the did, then on our we disciplinary proceedings own initiative must against launch predecessors. fact, however, is the county attorney duty no has under the statutes to handle county foreclosures unless “ordered” to do so board. There is no evidence pred- in the record that the ecessors ever were ordered to foreсlose. The record supports contrary inference.
Although respondent charged was not with vio- lating (A) (2), DR 6-101 he admits facts which make him guilty of such violation. On that basis I concur in the reprimand. I If supported believed that the record finding guilt (A) violation of (5) DR 7-102 then no reprimand Only mere suspension would suffice. or dis- barment would be in finding order. The majority discipline imposed by and the them are not consistent. say I am authorized to joins that McCown, J., in this concurrence and dissent. Royal Indemnity Company, a corporation, appellant, Casualty Surety corpora Aetna Cоmpany, appellees. tion, et al.,
Harry Otis, for Gaines, & B. ofOtis Tierney, Douglas Hen- Adams & John of Cassem, R. appellee Aetna & Co. atsch, for Cas. Sur.
Harry Vinardi, Kauffman Gross, Welch, L. Welch Day, appellees and Fitz- & Mut. Ins. Co. for Iowa Nat. water. J., Heard before Spencer, Boslaugh, White, C. JJ. and
McCown, Newton, Clinton, Brodkey, J. Brodkey, give underlying facts cases
The three appeal opinion this are set out in the of this rise to Libbey-Owens Paper M Glass Co. v. L & court in Ford 2d 523 Co., 792, 189 Neb. 205 N. W. will repeated here. appeal in case is from an the District order of separate sustaining filed Court demurrers the re- spective petition to the in an action filed defendants Indemnity plaintiff, Royal Company, the Towne, Inc., & one of the defendants in of Yale carrier previously present referred to. the action action purpose recovering for the was instituted Casualty Surety Company, Aetna from insurance Company; National Paper from Iowa L carrier for & M Company, carrier the insurance Mutual Insurance individu- Fitzwater Phil D. Fitzwater, Phil and from D. party ally, to the made insured who was Libbey-Owens M v. L & Co. action. Ford Glass Paper defendant was the insured however, designated E. and Gerald “Phil D. Fitzwater doing All Makes Forklift Serv- Gathmann, business as appeаrs has since E. ice.” Gathmann Gerald Roberta J. of his died, but administratrix estate not made a defendant. was Gathmann, Royal Indemnity petition sets out In its in this case, respective relationship car- between the alleges insureds, a consolidated riers and their jury separate actions, trial held in in which three Henningsen respective plaintiffs Foods, Inc., were Libbey-Owens Company. O. Ford Miller, J. Glass following alleges Plaintiff on December *3 jury trial in Aetna and Iowa ac- the which defendants tively participated, separate judgments in favor of three plaintiffs against thе above-named all the were entered jury defendants in those actions. defendants that all The found the guilty negligence proximately of active were causing damages. alleges plaintiffs’ petition further jury Henningsen that the returned verdicts favor of Foods, Inc., in $380,596.88 the amount of of favor Libbey-Owens Company Ford Glass amount the of $43,434.47;and in favor of O. J. Miller in amount the of alleges $45,000. Plaintiff the defendants in that unsuccessfully appealed former case thereafter to the Supreme following Court of Nebraska, the several plaintiffs proceedings judgments instituted to collect the Royal Indemnity way by garnishment from alone of proceedings against plaintiff. alleges the Plaintiff then fully discharged obligations that it has of its insured by paying judgments in full is and therefore sub- rogated rights against its insured the other judgment alleges tort-feasor equit- debtors. it is Paper by L & M Com- ably reimbursed to be entitled by Phil Aetna, and through pany, carrier, insurance its through individually his insurance and Fitzwater, D. each, one-third from the amount of Iowa, in carrier, judgments and accrued costs the total amount paid prays plaintiff by for therefore it; and against Aetna, the amount defendаnt, Iowa, its defendants, and $173,437.67; Fitzwater, for the same amount. insured, Phil D. pe- separately to the demurred defendants
The three hearing Royal Indemnity. Following on tition of each of matter, Court determined that the District separate demurrers should be sustained. dismissing plaintiffs peti-
thereupon an order entered rehearing overruled, motion for tion. Plaintiff’s appeal perfected its court. it then to this separate de- action, in this raised The issues defendants, above-named were whether murrers of the joint tort- between or not there be contribution direct aсtion feasors and also whether the Nebraska, plaintiff carriers in allege permissible. The demurrers also a de- this case fect of parties defendant to action.
This case necessitates examination and determina- present frequently tion of the status Nebraska of the can annouced rule be no contribution be- joint wrongdoers or tween several wrong tort-feasors,
persons who become liable another for a cowrong- cannot enforce contribution from his although compelled discharge doers, he is the wholе liability; particularly more than his share of such applies parties jointly whether that doctrine between negligence, charged present mere as in case, with *4 ap- rather with willful or intentional acts. this than Royal Indemnity peal, ignores asserts Nebraska disregards development historical doctrine, misinterpreted scope applicability, has its and has
756 incorrectly applied recent de- doctrine cases court. cided regarding to contribution between law
joint wrongdoers appears from, an offshoot to be exception general an general to, the of contribution. rule compelled pay
rule is that one to who or sat isfy just or bear than whole more his share obligation, upon per common burden equally which several they sons are liable or which are to dis bound charge, is entitled to contribution the others payment respective obtain from them the of their shares. Exchange § p. 18 Am. Jur. Contribution, ,1, 6; Ele 2d, vator Marshall, Co. v. 147 22 48, Neb. N. 2d 403 W. (1946); p. § Restatement, Restitution, 81, 360. The ex ception general appears originated to the have England Merry in 1799 in the well-known Rep. Eng. Rep. Nixan, weather 186, v. 8 Term. 101 1337 (1799), apparently the court where denied contribution, because of fact the tortfeasors in that case wrongdoers. were intentional tion, See Restatement, Restitu p. § 387; Reath, 85, Contribution Between Persons Jointly Charged Negligence Merry With weather v. Nix — Merryweather an, 12 Harv. L. Rev. 176. The rule v. subsequently Nixan, scope limited in its application by Bing. case Adamson v. Jarvis, 4 Rep. Eng. 66, 130 693 where the court stated: “* * * wrong-doers the rule that cannot have redress or contribution each other is confined to cases person seeking presumed where the redress must be doing have (Em known he was act” unlawful phasis supplied.) To the same effect see Betts v. Gib Eng. Rep. bins, 2 (1834); 58, Ad. & E. 111 22 Pearson Eng. Rep. Skelton, 1 M & (1836). W 150 English speaking Thereafter, through court, Herschell, Lord declined to Merry follow the rule of Nixan, weather v. where the of the tort grounded negligence. feasors was Pulteneytown on Palmer v. Wick & Shipping App.
Steam Co., Cases
757 distinction (1894). States, however, In the United wrongdoers, negligent which intentional between generally- English recognized was not courts, was many jurisdictions in this accepted, result with exception to country tort-feasor extended have regardless among joint deny tort-feasоrs, contribution intentional or involved willful their conduct whether negligence. Annotation, 60 mere See or misconduct, hand, 3(a) § On other at 1373. 1366, A. L. 2dR. country permitted many jurisdictions have in this other among joint mat- tort-feasors, either as contribution statutory of common law. as a matter ter of law, p. § 41, 60; Annota- 2d, Contribution, See Am. Jur. tion, 18 1366, Annotation 60 A. L. R. 2d 1107; 34 L. R. 2d A. juris- 4(a), appears approximately § 23 at 1377. adopted the Uniform Contribution dictions have either approved Among Act, Tort-feasors the Conference Laws or have on Uniform State in 1939, Commissioners adopted accomрlish independent acts to their own originally purposes. A few states same or similar adopted which permitting contribution as a result the rule judicial subsequently adopted statutes decision, have providing rules. for the same or similar history in Nebraska has been doctrine unclear. A detailed of the his- discussion checkered and development in- Nebraska, torical of the doctrine in analysis specific may cluding cases, be found in Indemnity Tort- Contribution Between Busick, Creighton (1974), Nebraska, 7 L. Rev. 182 feasors Against Comments, The Rule Contribution and Its Status (1958). Early in Nebraska, 37 Neb. L. Rev. 820 cаses jurisdiction strongly indicate that Nebraska fol- English permit Law, lowed and would among joint party seeking tort-feasors where the con- guilty wrongdoing. tribution had been of intentional dealing problem earliest with the was Johnson Torpy, v. 35 Neb. 53 N. W. where determining “In stated: whether the of con- wrong-doer an
tribution exists in favor of one
demanding
contribu
is,
other the test
must the
presumed
for
that the act
tion
to have known
wrongful?
respond
compelled
not,
If
he has been
equally culpable,
other
but
he
recover
remedy.” In
case the court cited
wise he is without
supra.
authority
еx
See,
Adamson v. Jarvis,
ample, Torpy
Johnson, 43 Neb.
62 N.
W.
*6
(1895);
(1903).
Sharp
95 N.
16
Call, 69 Neb.
W.
72,
v.
the
National
However, it was
until
case of First
Avery
Bank
95
622
Co.,
329,
v.
Planter
69 Neb.
N. W.
(1903),
actually permitted
that this court
regarded
among parties
joint
that
tort-feasors.
theory
parties
This
was done under the
the
had
any
good
“acted in
ting
faith without
intention of commit
trespass.”
Schappel
a
To the same effect see
v.
(1908).
Bank,
708,
First National
80 Neb.
115 N.
317W.
interpreted
authorities have
cases
Some
these
as estab
lishing
in
the rule
Nebraska
contri
among joint
bution
Comments,
tort-feasors.
See,
Against
Rule
Nebraska,
Contribution
Its Status in
George’s
Capital
37
820;
Radio,
Neb. L. Rev.
Inc. v.
App.
(1942).
187,
Transit
D.
126 F. 2d
Co., 75
C.
219
To
contrary,
language
reasoning
Judge
the
see
Dele
Supp.
hant in
Bros.,
Andromidas v. Theisen
94 F.
150
(D.
1950).
critique
for a
Neb.,
However,
of that case,
Indemnity
Busick,
see
Contribution and
Between Tort
Creighton
Nebraska,
feasors in
7
L. Rev. 182.
Schappel
the decision of this court in
Since
First
v.
only
Bank,
1908,
National
there have been
two
other cases which this court
had
has
occasion
con-
sider and
issue of
discuss the
contribution between
wrongdoers.
Hamp-
the
These were
cases of Tober v.
ton,
858,
178 Neb.
Inc. v. Blackstone Neb. *7 (1956). Since, under 2d 366 the facts of that N. W. agreement loan not between an the was insurance case, company insured, and its this court concluded that the parties plaintiffs not the real in that were interest accordingly, petition. their dismissed action; and, specifically Hampton defendant found that court joint company gas tort-feasors, the were and in effect agreement” a “loan would not held that have the same joint party interest” “real effect where tort-feasors involved as has where individual wеre company agreement” into has entered such “loan reasoning insured. its own the dis- with behind to a result that allow such would tinction was be to ex- joint tort-feasor who the to “loan cuse the having pay any agreement” compen- from amount as resulting damages injured party from sation for to the joint negligence In the that situa- of the tort-feasors. joint be re- tion it is clear that tort-feasor would agreement, other the imbursed under the loan while joint up paying the entire amount tort-feasor would end appear, that in Tober therefore, loss. would suрra, Hampton, v. court declined to hold that the the plaintiffs parties the real in interest under their were agreement” gas company “loan in order to with the joint avoid result of between indemnification regarded impermissible. tort-feasors, which court as Although principally involved matter of “contribution,” “indemnification” rather than the court proceeded further to “contribution,” discuss the issue of apparently assumption on the that if even the Tobers regarded parties were to be real interest under agreement,” developed the “loаn and if it further that gas company the amount of their loan from the the “loan under agreement” judg- exceeded the amount Hampton, Hampton ment recovered them from then upon, would be of, entitled a reduction or credit Upon to the extent of the excess. basis assumption, and after what termed “cursory prior review” of the Nebraska, authorities in apparently proceeded adopt deny- the court ing among negligent tort-feasors. doing, expressly so the court also overruled First Na- Avery Schappel tional Bank v. First National Planter v.
Bank, to the extent those cases v. conflict were with rule enunciated in Tober supra. Hampton, previously Since, as stated, Tober Hampton, supra, primarily question involved the indemnity, question involved the of contribu- tangentially, necessity ruling tion of the court’s on dissenting opin- the issue of contribution is unclear. See Hampton, supra; Smith, J., ion of in Tober v. also Indemnity Busick, Contribution and Between Tort- Creighton feasors Nebraska, 7 L. Rev. 182. It *8 interesting concurring opinion that a also to note suggests agreement” “loan should case simply regarded any been as a sеttlement. have if hold that event, even we now contribution between negligent joint permissible, tort-feasors is the result Hampton, unchanged. Tober v. would remain opinion consider We now the latest other any decided this court which in manner discusses the among question negligent of contribution tort- In the of feasors. Farmers Elevator Mut. Ins. Co. Liability v. American Mut. Farmers Cooperative Association and Wilmac Construction Com- pany into a entered construction contract under which Wilmac was remodel and renovate the facilities of Co-op. employee Strand, Farmers One of Wilmac, injured job brought negligence on the action against Co-op Farmers in federal District Court. Farm- Co-Op party complaint ers filed a third in that action against apparently upon Wilmac based a clause in the provided: construction contract which “Contractor shall save further and hold any harmless the owner from liability, claim, arising action, or cause of action out of performance upon of negli- this contract based gence agent employees.” (Em- contractor, his phasis supplied.) obviously theory It was of Farmers Co-op negligence contractor, Wilmac, injury Ultimately, had caused to Strand. Strand judgment recovered a the amount of $200,000 Co-op. Farmers entry Wilmac Thereafter, consented to judgment it on the third claim in $272,955.74 amount of federal court action. Fol- lowing judgments rendered the federal court ac- tion, to, above referred Farmers Elevator Mutual In- Company Cooperative surance and Farmers Association brought declaratory action in the District Douglas County liability Court for to determine the Empire Company, onе of the defendants, Insurance pay was the insurer of Wilmac, to the amount *9 party on the third the in federal court Although possible Co-op. it that
claim is of Farmers might quite simply disposed the- been of on case have grounds policy Em- a that clause in the insurance pire Company provided policy that the did Insurance apply any assumed “to insured under agreement,” proceeded nevertheless, contract or the court point ignored, to if out that even that clause were Co-op result be the would still same since Farmers joint Wilmac wеre joint tort-feasors. “Both stated: being wrongdoers, tort-feasors active contribution indemnity against cannot be maintained Again, however, other.” as with the case of Tober v. supra, Hampton, entirely it is not clear to what extent the issue of contribution was decisive of that case. equally arguable in the result Ele- Farmer’s unchanged vator adopt remain would even if we among negligent joint rule contribution tort- permissible. feasors is assuming Hampton,
However, even that Tober v. supra, and Farmers Elevator Mut. Ins. Co. v. American Liability supra, may interpreted Mut. аuthority may for the rule in this state that there be no negligent between contribution tort-feasors, we question must now justice consider of whether equity require change a in that rule. upon denying The rationale relied contribution among wrongdoers, intentional apparently also the applied deny rationale such cases as Andromidas v. Theisen Hamp Bros., and Tober v. ton,' against is that it public policy would be “to adjust equities wrongdoers, per between or to allow a son to found an action on wrongdoing.” his own 18 § C. J. Contribution, S., 15. However, it has been p. “* * * pointed out that this reason fails when tort committed third was due in any advertance, part without intent on the tort injure feasors to him.” Yerkes, Best v. Iowa (1956). supplied.) (Emphasis It has been N. W. 2d 23 ap- for the stated: “In most of such cases the reason plication said to be no-contribution knowledge person principle based on the that the responsible consequences ; that wrong of a he is for all the him, and thus induce will serve to restrain will persons warily guard more themselves little participation might produce with others acts which liability. tort theory That basis for this be some pеrsons directly contemplate cases which wrongful obvious, act is but that commission applies equally wrong in cases of unintentional strains credulity. one’s To believe the rule of no contribu- person careful, tion will tend to make or that careless *10 by a motorist is not who deterred from carelessness fear personal danger of legal by will be affected in his conduct a joint wrongdoers, no
rule of
contribution between
wholly
George’s Radio,
seems to us
fanciful.”
Inc. v.
Capital
App.
188,
Transit
D. C. at
that “the amount of the Insured’s pay finally by judg- shall have been determined either * * against ment the insured actual after trial There provision respective policies is also a prohibiting in the joining company any the insurance aas codefendant in liability. action to Although determine the insured’s plaintiffs Libbey-Owens is true that in the Ford Company judgment against Glass did obtain the in- companies, sureds of the defendant insurance it is like- present plaintiff, wise true that Royal neither the In- demnity, nor its insured, Yale and Inc., Towne, have ob- any judgment against tained assured, Aetna’s L & M Paper Company, they judgment against nor did obtain Iowa National’s insured, Phil Fitzwater, D. who is also defendant in case, this insured made a party Casualty this action. Neither Aetna and Sur- ety Company nor Iowa National Mutual Insurance Com- pany Libbey-Owens were defendants in the Ford Glass Company any case, nor against rendered original either of them in the action. It is there- clear, they improper fore, are defendants in this action, spite of the fact ultimately their insureds be able to recover them poli- on their cies for they may the amounts for which be held liable. For that reason, the order of the District Court must be regarded as correct to the extent the court sus- separate tained the Casualty demurrers of Aetna Surety Company and Iowa National Mutual Insurance Indemnity’s petition Royal Company, and dismissed remaining defendant However, them. partner in All Makes Fitzwater, as a action, Phil D. joint judgment debtors Service, Forklift *13 regarded proper-defend- prior must be as lawsuits, the Indemnity may Royal seek con- from ant herein whom paid proportionate of the share tribution individually partner liable on he is also As such it. alleges petition are firm judgment, there no since judgment. Thus, we to collect from which assets dismissing action the District erred in believe Court Phil order District as D. Fitzwater. The sustaining the de- must, therefore, be affirmed in Court Casualty Surety Company and of Aetna murrers Company, Mutual but must Iowa National Insurance Fitzwater, D. and the cause re- reversed as to Phil be proceedings for further not inconsistent with manded opinion. part
Affirmed and in part, REVERSEDAND REMANDED. J., dissenting.
Spencer, majority opinion ig- respectfully suggest I legislative the rule of decisis invades nores stare arena. scope been as to
Whatever doubt have regarding of contribu- rule in this state among negligent joint tort-feasors, tion the matter rest in the and laid to this court resolved case Hampton (1965), 136 Tober Neb. N. 2dW. v. subsequent in the of Farmers 194, and Elevator Liability Mut. Ins. Co. v. American Co. Mut. recognized 2d 378. 173 N. W. cases
185 Neb. Those and stated rule Nebraska to there is no negligent joint contribution between tort-feasors. years ago attempt
Approximately 20 was made to legislatively. change failed. this rule The effort So far determine, I have been able to has been jurisdictions. changеd it in 28 23 of them was done legislatively, in was done de- by judicial cision. It occurs to me that those of us who denounce the attempts by the legislative government branch encroach into the executive and the areas should judicial exercise restraint by what we practicing This preach. awas proper area for legislative consideration. I refuse to join my colleagues into the encroaching legislative arena.
Herbert Sherdon, Director, Communications Ac counting Department, Nebraska Public Service Com Jerry mission, appellee, Dann et al., appellants, Lodging intervener-appellee. Nebraska Association,
Einar Viren, Viren of Epstein & Leahy, appellants.