Russell L. Dawson v. Contractors Transport Corp. Magazine Bros. Construction Corp.

necessarily exception does not such an

apply stated: Circuit here. Second decide, however, whether

We do not plaintiffs stand have association de ing. The answer to that compel pends is a whether there standing ling grant them need to rights of order that constitutional

persons immediately before might vindicated. ex rel. of Alabama

NAACP v. State 449, 458-460, 78

Patterson, It 2 L.Ed.2d 1488

appears individual to us adequately represent

plaintiffs can rele members of

interests all class, preclude will not

vant we trying plaintiffs to show satisfaction

the District Court’s

it the association perform function.20

which can

However, ac- since is a valid class there here, appear would beneficial permit Association trial court appear This, how- as amicus curiae.

ever, is within discretion

court.

Russell L. DAWSON et al.

CONTRACTORS TRANSPORT CORP. Appellant,

Magazine Corp., Bros. et Construction al.

No. 24533. Appeals,

United States District Columbia Circuit.

Argued Oct.

Decided June

Rehearing Denied Nov.

20. 305 F.2d Washing- Mahoney, Jr.,

Mr. John F. ton, C., E. D. Mr. Charles whom C., Pledger, Jr., Washington, was on D. appellant. brief, for Magee, Washington, D. Warren Mr. E. Laughlin, C., with Mr. Thomas whom G. brief, Washington, C.,D. appellee Dawson. Washington, Gregg, D. Mr. C. James Hugh Jr.,

C., Lynch, Mr. with whom brief, Washington, C., was on D. appellee Co. William H. FAHY, Judge, Circuit Before Senior MacKINNON, Cir- and McGOWAN Judges. cuit Judge: McGOWAN,Circuit whether a us is issue before negligence cross-claiming in a defendant con- as a matter entitled stitutional special context arises injured in (1) plaintiff who has (2) employment, of his the course negligence any compensation suit a bar to as the eeived workmen’s .em- employer. ployee his 33 U.S.C. him available exclusive (1970). Thereafter, (3) Dawson employer, and two his sued his wife the District Court persons The cross-claim filed other tort. against Magazine defendants, and Contractors of such latter one negligence causing alleged alleges their employer’s Magazine third-par- injury; injury. filed responsible for the against Singleton complaint in- ty appear- the For hereinafter reasons demnification, between under a contract judge ing, find we that the was by judgment them, against any suffered empowered to resolve the hear Magazine. filed a then Contractors cross-complaint without intervention Singleton which, by against cross-claim judgment jury; of a and we affirm the Murray v. our decision in reference to of the District Court. States, U.S.App.D.C. 405 United sought (1968), a credit of F.2d 1361 against any judgment per cent Appellee injured Dawson was on De- against might Contractors. be rendered 15, 1964 cember course his em- “Murray credit” ployment Watergate Apartments The so-called general equitable doctrine construction is an extension site. contrac- project, Magazine tor in the context work of contribution Brothers compensation Construction Under Corporation, men’s claims. subcontracted principle contribution, tortfeasor plumbing the installation of and ven- against judgment systems rendered is employer, tilation to whom Dawson’s proportional appellee Singleton shares Company. entitled recover William to H. Appellant judgment tort Transport from other Corpo- Contractors agreed negligence to Singleton contributed ration with feasors whose deliver “rig place injury are liable into and who also when directed” three large refrigeration employers During covered plaintiff.1 Since machines. compensation not delivery statutes of these workmen’s machines winch employees, injured snapped, causing line to their injury Dawson, liable in tort con assisting unloading. are not entitled who was in the other negligent employers, and from tribution Dawson subsequently applied for and Murray, entire thus, bore before compensation received damages.2 tort burden of the Longshoremen’s under and Harbor Compensation mitigate of this Workers’ To the harshness Act, 33 U.S.C. § person Murray seq. (1970), sult, applicable 901 et we held made employee against awarded District of whom Columbia 36 D.C.Code is, reduce terms, The Act tort action could § 501. in a its the ex- against per he judgment by could employers clusive cent availa- negligence employees injured employer’s ble con- show that course of injury.3 employment, their the basis operates Thus to the and thus tributed Murray This is true at extension of least where the was itself an tort Hawley, intentional or malum in se. in Martello v. See court’s rule (1962), seq. U.S.App.D.C. Am.Jur.2d 300 F.2d 721 Contribution 33 et §§ (1965) ; George’s Capital set- that when a Radio Inc. v. where we held tortfeasor, against U.S.App.D.C. Transit an- tled one his claim plain- F.2d 219 whom other actually brought entitled tiff Murray resulting judgment by States, v. United reduce a U.S. 50%. App.D.C. 91, 94, Murray 1361, 1364; Although Federal involved the 405 F.2d Act, Employees’ Compensation States, U.S.C. Wien Alaska Airlines v. United applies (9th Cir.), seq. denied, 375 F.2d its cert. rationale 8101 et § virtually provi- equally identical 19 L.Ed.2d (1967) ; Liability Longshoremen’s Harbor American Mutual sions of the Co. Matthews, Act, (2d Compensation 1950). 33 U.S.C. F.2d 322 Cir. Workers’ underlying the cross-claim should have against Sin- cross-claim of Contractors’ Single- that the allegation been submitted gleton deciding it him- judge in action to Dawson’s contributed ton’s its Seventh denied Contractors self injury. trial, Dawson moved for Before the II against Magazine trial in his pre in terms The Constitution Magazine in re- Contractors, did and spect by jury to trial law, serves third-party complaint its where the value “suits Singleton. Although Contrac- controversy twenty shall exceed dol request relation no such made tors established, however, It is well lars.” against Singleton, it cross-claim which are “suits at that actions com argues transcript shows the trial strictly mon law” but which lie agreed at the that the court and give to trial rise to a do of fact the issues the trial that start of may by be tried the court and to be submitted the cross-claim would on eq relating of fact to an Issues alone. Alternatively, jury. as- Contractors the submitted uitable claim was, any event, entitled serts that it judge discre however, the in his if rely of its co-defendant to on the motion do A threshold to so.5 tion chooses Magazine.4 here, therefore, the question is whether judge outset to submit undertook at the trial, attempted to At the Contractors to on the cross-claim fact the issues of negli- own freedom from establish its jury. the gence asserting showing by that the and injury Singleton’s sole the cause of Contractors that While insists negligence. brought However, understanding the be an there was such which, although general verdict parties, the the tween the court and finding Magazine negligent, held no meet record indicates that there was ing $100,000 for in dam- Contractors liable question. It minds ages. judge trial then addressed apparent and that at least the court cross-claim, to find- Mag himself Contractors’ ing Dawson, Singleton, and counsel that of law azine understood that the issues accordingly, and, the evidence of record would be de and fact on the cross-claim denying the cross-claim. Contractors judge jury’s by alone after cided now Although asserts that in the verdict main action.6 seq. et Our attention lias prior overrule decisions of this court. continuing been directed to Turner v. Excavation Consequently, we assume the Inc., F.Supp. (D.C. Murray ap- validity Construction rule and its 1971), Long- plication which the District Court artic involving had with the ulated some difficulties it Harbor Workers’ Com- and shoremen’s Murray rule, and refused to extend it pensation Act. cases under latter statute. The Dis primarily with trict Court concerned 4. Because we reach the merits of Contrac- apparent inability employer, to a' trial on its cross- tors’ Murray applied, pursue question complaint, reimburse obtain we do not payments Magazine’s request scope the com ment for made under of jury pensation statute. § See 33 U.S.C. (1970) ; States, Randall v. United Holtzoff, Federal 5. See 2B Barron and U.S.App.D.C. (1960) ; 317, 282 F.2d 287 at 32 Procedure Practice and Pope Talbot, Hawn, and & 411-412, L.Ed. 74 S.Ct. trial, beginning the follow- 6. At the place colloquy ing employer’s right between court took reimbursement employee in this counsel: is not an issue his Dawson) (Counsel Murray’s : Moreover, MR. MAGEE case. Honor, agree your suggest, that validity argued panel, to this was not authority which, any event, be tried first on this case is without “legal” de- of an issue is nature [T]he for Con- made counsel statement first, by considering, complete- termined colloquy in this tractors equity in the pre-merger law and significant [of clear, there was ly it is custom with Rules in Federal 1938] which objection course to the no voiced second, questions; reference to such planned fol- said the court sought; third, and, Although the clar- lacks the record low. limitations practical finding abilities of a waiver requisite ity for the first, factors, juries. these Of rights now asserted constitutional possibly ab- quiring extensive Contractors, at least indicate it does obviously inquiry, historical agreement struse reached be- no there was apply. Id. at the most difficult the court which tween the at 738. n. pressing estops any one of them from respect present position his origin, Despite we recent procedure appropriately followed. to be Murray credit no doubt have resolving judge Thus, the erred Indeed, equitable in character. claim is only if himself Contractors cross-claim First, origin. doubly equitable it has a protected constitutionally had a of contribution itself was doctrine ques- jury. to that answer dissipate created courts of analysis requires of the nature the harshness of the common rule law credit, Murray and ex- for a of a claim rendered liable for the entire dam leading decisions of the amination ages judg a tortfeasor whom a in this area. obtained, despite ment ex parties other istence of Ill to the As this court said in Jones suit. Supreme the dif Court has noted U.S.App.D.C. 169, 170, Schramm, 141 “defin(ing) ficulty precision the with of (1970); 171, 436 F.2d 900-901 dealing with line actions at law between “equitable dealing Contribution is an doctrine legal rights equity and suits in principle justice,” on based of matters,” equitable Bern Ross with —which dependent contract, is not ac- on 531, 533, hard, 396 original tion, relationship L.Ed.2d 729 and has parties. of . . . doctrine suggested that it, damages I negligence against THE COURT: As see of and thing jury, if the third-party to be submitted to the and the de- two defendants jury, gets fendant, to the is the ease framed and that the issues third-party Contractors, Magazine, third-party complaint and and . . . Singleton. Magazine . . . AVhat defendant filed on behalf of erossclaims simplify trying it for the I am to do is ... Brothers and Contractors away by your erossclaims take these and determined Honor after they jury’s jury. won’t to be so have in verdict is without On I questions ... think bothered with that. is and laio and —that fact help comjdieated you agree, it will case like this Mr. all. THE COURT: Do too, everybody Mahoney? if we con- and the principal (Counsel to the three fine the case MR. MAHONEY Contrac- parties. statement, tors) Except . I for the last Yes, your can Honor MR. MAGEE: determination believe rights segregation later. negligence all handle on the crossclaim of Con- Murray this be- respect I have done THE COURT: with to the cred- tractors right, agree (sic), we on that. All fore. I think of it would be determined counsel) (Singleton’s : application MR. GREGG cross- of law on the Honor, going make agree Magee I am Mr. Your I claim. addressing statement, any opening nor as to the three the issues of (sic) voir dire. and be submitted to my feeling, That THE the crossclaims COURT: rule on then going claims jury’s these cross findings. decide I am based suits, principal than all other and (Emphasis any for it. need see don’t supplied). regarded originated equitable tionally in the courts contribution as an in —could not be denied a trial when equity, it was announced leading opinion (1) underlying jurisdiction in a all the the action claims legal (2) corpo- Judge may were had the . . Groner. .We apparent- assume, therefore, as it ration in its own on those sued assumed, ly ques- generally claims, no that when there would have been sought against jury. Thus, contribution a de- by plain- plaintiffs fendant who was not sued mere fact that the were stock- tiff, permitted decisions, suing corpora- our holders behalf procedural tion, by the claim sounds and the device of means of not, equitable origin, de- acts as could for Seventh finder of fact purposes, deprive termine whether the second the action sought from whom contribution is was of its essential character as a suit at negligent, to the liable law.8 therefore (Emphasis supplied).7 victim. however, us,, In the case before Second, Murray adopted credit was legal no underlie Contractors’ claims prevent inequity in eases where work- cross-claim. it is true that the is While compensation recovery bars men’s Singleton’s negligence sue is relevant Furthermore, contribution. unlike ac- cross-claim, a distinction must be traditionally, Murray tions at law negligence, made between the fact credit claim is not an action to recover may variety which be relevant to a damages object money from the legal actions, equitable, both claim, but rather for a declaration of en- “negligence” legal as a cause of action titlement to a credit the claim- negligence, in tort. The ex fact liability ant’s par- to a third ample, is also relevant actions ty. contribution; yet as we made clear Schramm, supra, Court’s decision in Ross Jones v. Bernhard, supra, does not affect the action that be tried Murray jury. Similarly, conclusion that a credit claim is without a the fact that equitable, Singleton’s negligence and thus does not in itself is rel give right by jury. rise to a to trial evant to the cross-claim does not convert legal essentially There the held Court that a in the action into an ac a stockholder’s derivative suit—tradi- tion. analysis aequali jure, party

7. The historical in set forth the in the and where early claiming dissent demonstrates at most that the the assistance of the court origins by precluded, turpitude, of contribution are in shrouded not his own obscurity confusion; receiving and it does not es- it. purposes determining in tablish .the that courts of law For nature country would have entertained action for con- claim for in contribution this tribution, against negligent least as in more rele- case seems us English tort-feasors. While some of the earlier vant than the later of Betts case appear recognized Gibbins, Eng.Rep. cases after 1791 to have E. Ad. and against negligent (K.B.1834), contribution tort-feasors on which the dissent remedy, regarding as an available those that ad- relies. For more recent cases precise action, equitable dressed the issue of whether it see contribution pursued only |§ could be at law or the cases collected 18 Am.Jr.2d regarded equitable. the action as Thus 4& Jones, (Va.1823), Thweatt v. 1 Rand. 328 potentially Justice Green observed that 8. For a discussion of the severe only expansive impact Courts of law enforce contribution of Ross nature already in cases where a contract between the Bernhard overtaxed parties presumed, litigation, that effect to civil see resources devoted equity indulge larger Note, but courts of in a Ross v. Bernhard: The Uncertain jurisdiction, Amendment, and admit of the Future Seventh originally whenever were Yale L.J. subject, jointly, to the burthen are and equitable; ended, which is both are inquiry not how entitled Our jury eq to a trial of an which issue is le- ever, that a claim the fact because gal. single deprive there always Where does uitable legal jury right on factual issues common to both trial to a of a claimant equitable party claims, and either the claim. If relevant factual issues jury to a a constitutional trial both issues there are factual legal issue, joined in the on the and to have that is- legal equitable claims by jury sue resolved before suit, any to a has a same equitable be court determines issue. of those issues determination equitable rules fore the court precise factual Isolation Theaters, Inc. Beacon claim. in Contractors’ cross-claim involved Westover, 359 U.S. against Singleton reveals that there (1959) Dairy Queen, L.Ed.2d 988 no common to both were factual Wood, legal equitable claims Beacon Thea In 8 L.Ed.2d 44 judge’s suit, determination and that by by plaintiffs, ters, threatened jury’s equitable issues after Act, under the Sherman the defendants precluded any way party’s verdict in no suing defendants beat le- determination injunctive judgment declaratory gal legal In the action Daw- issues. any defend relief against Contractors, son factual defendants ants. counterclaimed negli- issue was whether Contractors’ for treble under Sherman gence injury. was a cause of the While legal Act, claim. The attempted persuade Contractors dispositive held since the negligent it because plaintiffs’ claim and facts both Single- injury solely was caused were the the defendants’ counterclaim negligence, concedes Contractors ton’s (i. e., plaintiffs’ violation of the same finding jury’s verdict Contrac- non), to resolve the Act vel Sherman finding, no im- tors included plaintiffs’ equity suit first without Single- otherwise, plicit or as to whether subsequent preclude effect would in negligent. jointly The most ton was by jury on the defendants’ counter implied verdict could have claim, depriving defendants thus solely negli- was that right. their Seventh gent. Indeed, Contractors concedes that argue Singleton’s underlay A it did not the issue of similar rationale the hold- ing Dairy Queen, partial plain- where the pleading tiff’s no defense because would have been contained both (injunctive against Contractors, relief Dawson’s claim trademark in- fringement) legal (a merely request would that de- and have weakened for eyes jury. alleged in fense the the based same infringement) trademark claims. The not like Jones Thus case is v. preliminary Court held that the determi- supra, Schramm, Brandon where sued equitable nation of the claims without a negligence, the Jones and Schramm jury preclude jury would a trial on the negligent jury found and Schramm legal deprive claims and thus defendants judge negligent, not the then Jones rights. their Seventh Amendment As awarded Schramm contribution we said in National Life Insurance Co. jury’s the This court held that Jones. Silverman, v. U.S.App.D.C. 56, non-negligence determination of Jones’s 899, F.2d reversed en banc on other judge could not a in be overturned grounds, slip opinion, 9, December subsequent equitable con- the action for 1971: right tribution, since clear Jones had a theory [T]he jury these two of the factual determination Here, seems original legal clear. Neither the action. issues jury entitled to judge’s trial of hand, an issue on the other the determina- Singleton negligent appropriate not was relief tion that the directors jury’s way company with the of their inconsistent closed-end investment in no finding express that Contractors its investment brokers. Plaintiffs finding jury implicit corpora- or its demanded the negligent. solely claims tion’s the directors interest, conflicts of manifested equita which is Absent a claim payment of excessive commissions to the legal essence, only but in name ble brokers. The District Court denied de- Bernhard, supra, fac and absent Ross v. plaintiffs’ motion to fendants’ strike le common to both which are tual issues jury demand. The Second Circuit Queen claims, Dairy equitable gal and holding versed, that a derivative action Westover, Theaters and Beacon Wood being traditionally equitable wholly general seem supra, rule would still nature, constitutionally in required legal apply must be any part peti- try On it. wish claimant so tried certiorari, granted tion for because of a es, claimant’s desires whereas circuits,2 Supreme conflict between equitable controlling the case of Appeals, Court reversed the Court of claims. holding trial de- pends not on the traditional context in judgment Court is District upon raised, which an issue is but Affirmed. nature of issue to be decided. regarded a derivative suit as hav- (dis- Judge FAHY, Senior Circuit ing aspect, a dual nature. One whether senting) : shareholder sue on the corporation, behalf position majority accept is of an nature. that we are called to decide wheth- corporation’s claim, other, The gal, is le- right, by er Contractors is entitled as of involving determination, inter Amendment, reason the Seventh alia, of fraud. The Court held that Singleton’s trial of issue of plaintiffs had the under the Sev- negligence on Contractors’ cross-com- legal enth Amendment to have this issue Singleton. plaint against I think Con- jury. tried to a right. tractors has The evidence Supreme Ross cites earlier Court cases bearing on the issue was heard authority holding appears judge think and I should not go securing further the Seventh have from the taken it when was post- than earlier deciding of Contractors’ own merger Theatres, Both cases. Beacon contributing negligence in to Dawson’s 500, Westover, 79 S.Ct. injury.1 (1959), Dairy 3 L.Ed.2d 988 Queen, Wood, recent most Court deci- Inc. 82 S. U.S. subject sion on the rendered after the Ct. L.Ed.2d involved merger which, merger, suits in law the federal even before Bernhard, cognizable courts is Ross v. 396 issues were in a court of law. legal In Beacon Theatres L.Ed.2d 729 claims (1970). Ross awas stockholders’ deriv- arose from a counterclaim that turned money damages ative suit for and other on the reasonableness of a restraint of jury Neely, Maintenance as a also fact-find Scott v. S. ing body importance is of such and Ct. oc 35 L.Ed. 358 cupies place history so firm a in our jurisprudence any seeming and 2. The conflict was created between the right jury curtailment of the to a trial in Ross Second Circuit and the Ninth Security should be scrutinized utmost DePinto v. Provident Circuit (9th care. Life Ins. 323 F.2d 826 Cir. Schiedt, 474, 486, 1963). Dimick v. 293 U.S. 296, 301, S.Ct. L.Ed. controversy applicable petitioner anti- federal between re- uhder trade spondent issue of reasonableness substance laws. The involves trust depended petitioner, amount obligated client, the existence of of fees a turn ques- pay parties, respondent, competition a to between the his law- right. yer. . as of Denial . . tion for the right upon a had based belief The case was in its basic character injunctive relief made the claim for adjudicate a to determine original complaint styled out in the lawyer owing by amount fees a equity. purposes as in for all the cause contingent under client a fee retainer injunction a without have issued an To contract, ‘legal’ traditionally a action. however, a later would have barred Child, See Trist v. Wall. by his consti- the defendant of exercise 623;] 441, 22 L.Ed. [88 U.S. Stanton allega- jury trial on the tutional to Embrey, L.Ed. [23 U.S. 548 Simply stat- his counterclaim. tions of The fact that the action is 983.] a ed, held that if cause Beacon Theatres declaratory judgment form a legal equitable contains action essentially should le obscure equitable be decided claims, cannot gal ques nature of action. The they of a exercise foreclose the first traditional com tions involved are a party’s constitutional mon-law issues which can be and have been submitted a should Queen prayed Dairy complaint peti appropriate under instructions as “accounting,” both injunction, requested. for an tioner remedies, and equitable are which of money Simler, 223, 83 at 611. S.Ct. U.S. at damages. found that Court facts, that a indicates confined right equitable underlying all for claim in a suit trial exists money lief the claim legisla- by seeks created and trade- on contract breach of based involving an otherwise action ture but legal infringement, causes of both mark (presum- traditionally cognizable at law entitling as of year ably the Seventh as of jury. refused to trial The Court requi- adopted Amendment was legal to be swallowed allow the claims force).3 inbe number of States site response equitable In ones. beyond accounting argument that however, itself, lan- Ross, utilizes the capabilities to look into the complicated Simler, guage somewhat which records, the business leg- required cover a than broader authority 53(b), cited Fed.R.Civ.P. remedy, as illustrative islative appoint assist court master to Thus, test. nature-of-the-issue basic jury. 537-538, 90 states, 396 U.S. Ross at 738: Consistently S.Ct. Theatres with Beacon Court, Dairy Queen, hold the Ross cases, where those Under ques ing that the “Seventh Amendment joined legal in the claims depends issue to on the nature of the right to action, is a there same than the character be tried rather legal must which claims trial on Conner, action,” cited overall Simler v. by trying the infringed either not be 609, 9 L.Ed.2d equi- legal incidental opinion per that fol curiam a ones or Dairy table Theatres and Beacon lowed both existing between Queen. de a suit Simler involved The Seventh claims. judgment. The Court ob claratory nature depends that the served supra. Schiedt,

3. Dimick v.

736 negligent joint tortfeasors,4 to be rather than the char- tried allows a implead defendant Sim- to overall action.10 See acter the brought who not been into the suit 10. indicate, “legal” cases the na As our original plaintiff the either because is determined con ture an issue immunity,5 plaintiff’s or of choice.6 pre-merger sidering, first, the custom whether is en- Contractors questions; to such sec with reference remedy and, third, ond, sought; right titled as to a trial of its practical abilities and limitations against Singleton claim must resolved juries. factors, first, Of these making inquiries Ross, set out in requiring possibly extensive ab is, pur- that the nature of an issue for inquiry, obviously struse historical pose of the Seventh Amendment apply. James, to be the most difficult Right Jury Actions, Trial Civil by examining (1) pre- ascertained (1963). Yale 655 72 L.J. merger trying questions; custom of such Conner,

ler 83 S.Ct. 221, 372 U.S. (2) sought; (3) remedy (1963). 609, 9 L.Ed.2d 691 practical ju- abilities and limitations of 10, ries. 396 at 90 538 n. S.Ct. 733. U.S. by jury to trial Ross extends majority opin- I understand the to be prior plaintiffs who, to a class present ion crucial factor in the merger jurisdictions prior (and in some remedy sought case is whether the “legal” right on Ross), would not have “equitable.” Accordingly corporation’s Ross At least claims. inquiry historical to follow will concen- formerly if a claim think means that upon determining trate whether contri- cognizable only because of bution was a available in the reluctance to enforce derivative law’s merger prior courts of law rights brought in a civil is now federal equity in of law and the federal courts.7 legal, underlying action and the issue is pre- trial must be remedy sought I. The served. Ross, Supreme read with earlier Court us, In the now before Contractors subject of the Seventh sought, allegation on the basis of an right, suggests Amendment the in- negligence, a form of contribution —the quiry ought Eng- to be addressed to the Murray the third credit— up lish common law to 17918 and the Singleton. Singleton defendant im- prior American court to 1938.9 decisions by Dawson, mune from who, as an employee Singleton, was remitted as English a. Pre-1791 common law compensa- workmen’s history of contribution based on laws. Not does the District of claims for among Columbia well-docu- law allow contribution Wash.L.Rep. George’s (D.C.Super.Ct., Radio, Sept. Capital 4. Transit 14, 1971). U.S.App.D.C. 187, 126 F.2d 219 (1942) ; Feltman, U.S.App. Knell v. “[Rjesort appropri 8. must be had to the 22, (1949). D.C. F.2d 662 ate rules of the common law established Murray Schiedt, States, 5. . U.S.App. . . in 1791.” Dimick v. v. United 476, 297; 474 at D.C. F.2d 55 S.Ct. 296 Line, Baltimore & Carolina Inc. v. Red Hawley, U.S.App.D.C. 6. Martello v. man, 300 F.2d 721 L.Ed. 1636 Superior suggests pre-merger Two cases decided Justice White history, expansive for the District of Columbia undertake a a more view of rel- inquiry determining practice like historical evant common law than that es- statutory summary poused pro in the earlier Court cas- ceeding repossession prop es, 7, supra, of leased see note is to be considered erty determining entitled under Seventh trial. Bernhard, Ross v. 396 U.S. 531 Urciolo Evans, Hunter, Daily and Davis v. n.

737 er action to recover from the defendant. 1791, due no doubt prior mented promise by The court found a the de- English of oral tradition largely to the indemnify15 the sheriff and 1785, fendant and, delivery opinions, before promise. him reporters. allowed to recover on large unofficial number a “multiplicity of led to a The situation duplicating following year, Battersey’s The inaccurate often (sub Harcot), nom. Fletcher v. Case 10 selective, “Reporting reports.” [was] 49, (C.P.1623), Eng.Rep. 124 41 Winch three though some there have upon upon in an action the case as- only reports, not does hundred series brought sumpsit plaintiff, at law who appel- report decided all one of them held an earlier law suit had been liable cases, them combined not all late Battersey, to against was allowed to recover only Furthermore, reports are do so. requested defendant who had opinion deemed parts of the those plaintiff to do the act for which he was reporter to the particular useful Battersey. earlier found liable to De- 11 lawyer.” Battersey fendant had arrested and had light significant Nevertheless, plaintiff’s taken him to inn. Defendant remedy of contribu Battersey available as requested plaintiff keep 1791, prior Al thereafter. custody. In the earlier action Batter- though origin has been attributed sey plaintiff recovered Court,12 gradually Chancery be imprisonment. false court in remedy concurrently available as came apparently implied the second action obligors instance, joint of promise by at law.13 For he defendant would contract, debt, could or of a co-sureties plaintiff harmless.” The fiction “save obligation joint in a court enforce their implied promise plain- enabled Chancery.14 As ear of law as well as com- tiff’s case to conform to the fixed among negligent ly as 1622 contribution form action and therefore al- mon-law joint available tortfeasors was to recover contribution low Gardiner, In Arundel v. Cro.Jac. at law. Significantly, court in a law court. (K.B.1622), Eng.Rep. allowing recognized the limitation sheriff, plaintiff, had seized is, recovery, plaintiff known goods shopkeeper pursuant of a to a imprisonment he would was false writ of execution obtained the de from de- to recover allowed have been shopkeeper, in an earlier fendant. way, contribu- another fendant. Stated trespass action against the law joint negligent tort- accorded tion was sheriff, money had recovered law. a court of sought feasor damages. The in the lat- sheriff supra. Craythorne Swinburne, 10. M. Price g., E. v. Bitner, Legal H.& Effective (1953). Research 283 early indemnity rele cases are These 11. Id. difficulty ais tribute to Jus in as the indemnor insofar both vant They tice White's characterization of the his turn on are tortfeasors. demnee inquiry “abstruse,” torical express implied, Ross v. promise, made one Bernhard, at 538 n. S. joint other harm to “save spurred Dictionary Ct. and no doubt the com Law Bouvier’s See 1 less.” James, Jury Right ments found in 1914). (Rawle It ed. Action, indemnity Trial Civil Yale L.J. 655 promise them makes which (1963). exigen Nevertheless, due cases. rigid law forms cies Pomeroy, Equity Jurisprudence 12. 2 J. § properly early action, these early of contribution forms viewed among Craythorne Swinburne, 14 Ves.Jun. tortfeasors. Cf. Eng.Rep. (Ch. 1807) ; Prosser, 50 at § Torts W. Jones, Ad Thweatt's Administrator Gibbins, E. 2 Ad. & also Betts See ministrator, (Va.1823). 1 Rand. 328 1834). (K.B. Eng.Rep. 22 Pomeroy, Equity Jurisprudence also 2 J. 16. Id. reports indemnity in in which ease nor next contribution: ex- The sought ception clearly is, at law where contribution act not (non-intentional) joint illegal [negligent]. negligent in itself Mer- one And ryweather (8 Philips was, 186), v. Nixan another is v. T.R. tortfeasor besides, only 164, Eng.Rep. a of Biggs, 433 refusal a rule nisi. 145 Hardres case, disposition do see (Ex.1659). the distinction The between although reported, indemnity; however, contribution and appears it thought nothing to me reporter the court that there is noted prevent impression either of first and en- in case. one case plainly wrong- The to whether were doubt as tertained some doers, be allowed recover. sense in should which that word is used in the cases referred to for the report The of a case which a first . defendant. . . This case bears party sought at contribution law from analogy no to those in which in- an joint Merry an intentional demnity obviously is claimed for acts Nixan, 186, Eng. weather 8 T.R. 101 v. unlawful, peace like breaches of the Rep. (K.B.1799). In 1337 case the court refused to allow contribution on 2 Eng.Rep. Ad. 74-77, & E. at 111 at wrongdoer the theory a willful Thus, Merryweather 29-30. against was a rule fully responsibility must bear for his only contribution in cases where own acts. intentional, opposed tort was subsequent v. decision Betts negligent. merely Although Betts was Gibbins, 57, Eng.Rep. 2 Ad. & E. 111 22 1834, reinforcing provides decided in (K.B.1834), plaintiffs allowed to recover hindsight as to the state the common implied on law an defendant availability law 1791 of contri- promise indemnity plaintiffs, where bution at law.17 unintentionally eight hogs misdelivered There is no evidence to indicate that belonging heads of acetate of lime among law courts refused contribution party. plain party third The third sued negligent joint Consequent- tortfeasors. tiffs earlier action trover and ly, support the above cases the conclu- Betts, following recovered. posite com England sion that contribution in opinions judges, of the makes legal remedy as of 1791. Merry clear the distinction between weather v. Nixan and the earlier Batter

sey’s Case: b. American on decisions prior contribution 1988 Merry (8 weather v. Nixan merger 186)

T.R. seems to me to have been beyond Apparently early strained what the decision will American deci present rendered, excep survey, case is an sions as of .bear. general general tion to the rule. The followed the law as in Betts.18 In stated wrongdoers is, rule subsequently misplaced that between stated and reli [in Merry tentional there is neither ance of tortfeasors] American courts Accord, Wooley Batte, (1870) ; Becker, v. 2 Car. & P. Farwell 129 Ill. v. 417, Eng.Rep. (N.P. 1826) (con Except N.E. joint negligent Armstrong County, tribution between tort Aclieson opinions allowed.) feasors above indicate negligence of the allowing sought. among neg 18. Those contribution from whom contribution was ligent joint Reath, in actions at law Between Persons Contribution Elder, Jointly Charged Negligence Merry are: Horbach’s v. Adm’rs 6 Harris — (1851); Nixan, 18 Pa. Acheson weather v. 12 Harv.L.Rev. Miller, Battersey’s Case, (1853) Bailey (1898) ; ; Hatcher, 2 Ohio St. 203 Bussing, (1859); W.Va.L.Q. 28 Conn. See also W. Arms County trong County, Prosser, v. Clarion 66 Pa. Torts turning point prior Nixan,19 oc available as a cause of action weather recognized However, have of the cur courts so that as curred after negligence analogous trea the com Prosser’s edition Professor rent case, jurisdictions trespass mon on law action of nine tise Torts jury. Consequent which was tried judicial resurrection has there ly, Anglo-American actions are considered rule allow the earlier by jury right. among be triable Mar ing Cf. Inc., Terminals, tin v. Detroit Marine of at least As tortfeasors.20 (E.D.Mich. 579, F.Supp. 189 581-583 allowing legislation passed states had 1960); Byrd Ridge v. Blue Elec Rural tortfeasors,21 among joint contribution Cooperative, Inc., 525, tric 78 allowing any contri the rule but 893, (1958). See 2 L.Ed.2d 953 in the Unit to flourish bution continues Weiner, Jury The Civil Trial and the ed States.22 Distinction, Law-Fact 54 Cal.L.Rev. Columbia, it was In the District of 1867, (1966). 1890-92 doubt until this 1942 that any dispute there is this been parties inten- “not held that when are money damages, legal an action for wrongdoers, tional wilful but remedy, parties the action would legal intend- made so inference be considered constitutional have a ment, enforced.” be contribution by jury.23 to trial George’s Radio, Capital Transit pre-merger practice While no there is U.S.App.D.C. 126 F.2d at 75 at in the of as to the District Columbia 223. handling negligence underlying contribution, claims for contribu- since Pre-merger custom with reference II. among negligent tion was not allowed to trial the issues joint practice until tortfeasors year significant. aspect inquiry, In Knell of the Ross after As to this supra, Hawley, negligence today Feltman, Martello v. v. we know it as negli Harper James, with issue of defendant’s F. Law 1 F. & of Torts 231B, gence. 1 Ch. § Mass.Ann.Laws 10.2 This reliance has § ; Supp.) (1971 difficulty H. P. Hood O’Mara attributed to a semantic with Sons, Inc., & 268 N.E.2d word in the the use of the Mass. (1971) ; Merry-weather opinion. N.J.Stat.Ann. 2A :53A-2 § the word tort As ; Chicago Express, commonly (1952) McIntosh v. feasors was 1799, understood (D.N.J.1957); Inc., F.Supp. meaning encompassed only its Chaney, F.Supp. perpetrator Wilchek v. willful or intentional of a tort. Miraglia (D.N.J.1958) ; Miraglia, Reath, Between Persons Contribution (App.Div. Jointly N.J.Super. 266, Charged Negligenc —Merry for A.2d 762 e 1969). Nixan, weather v. 12 Harv.L.Rev. may, (1898). Be that the facts application: Prosser, Merryxoeather at Torts 306-10 § limit 22. See W. conversion, wrong in an there tentional tort. England In civil actions Prosser, Torts 306-10 W. only mode of trial law until 1854 by jury. In 1854 the trial available was Among Radoff, Act intro- Contribution Law Procedure 21. See Joint the Common by judge possibility Tortfeasors, of a trial 326 n. 5 44 Tex.L.Rev. duced catalogue Subsequent (1965), Acts of the statutes Judicature for a alone. greater oppor- twenty-four In allowed states. Massachu- 1873 and 1875 these example, Jersey, tunity dispense with where setts and New measure, temporary among jury war A at law. statutes allow suspended trial an Act allow defendants the 1918 Juries tortfeasors original law, but implead actions at most civil those claimed brought jointly Act of Justice Administration most prac- plaintiff, instated into the action try modification the issue of third dramatic tice is to passage along negligence in 1933 with occurred defendant’s Schramm, supra, operation U.S. But Jones the work- compensation App.D.C. 169, laws, the men’s F.2d contributing gone of the would have issue negligence defendant’s jury. (assuming that, laws, submitted to but for those Sin- gleton joined would have been as an case, present In seeks Contractors original party defendant). or third legal remedy, contribution,24 a form of compensation laws free alleged negligence of basis by Dawson, Single- employee Singleton. appears ines legal It to me to be together ton, but the federal rules capable that such a suit for a the District of Columbia substantive law remedy, ques based of contribution allow Contractors typically tion that tried to a bring Singleton into the action in at- right to constitutional Contractors tempt entirely to free itself from liabili- alleged negligence. trial of the ty liability. or at least to reduce its operation compensation laws practical III. The joinder abilities and limita- the liberal of devices the federal juries change tions rules does not the nature of the of presenting properly lawsuit. As remaining factor set out Jus easily triable to a it is more determining the tice White in Ross for compelling certainly Ross, than is “legal” nature of the issue the feasi is great Ross,26 departure not as a it as bility jury disputed of is trial of the departure all, pre-1938 abe at presents Our sue. familiar fac practice. Indeed, it fair to seems state dispute tual in as behavior of to the an that this is a suit of based a claim jured employee, employer in and an negligence historically by a one tried — dependent contractor, requires, as jury remedy contribution—a avail- —for do cases, application all prior and, therefore, able at law of the standard of or due reasonableness coverage within the of the Sev- care jury to the facts as found enth Amendment. The here liability. jury completes ascertain -The Murray tried the established by setting damages. appropriate task credit, negligence. itself, but Upon finding by jury im that the pleaded Notwithstanding employer jointly negligent, ques the recurrent is judge adjust tion of the the trial wisdom of the of trial must Murray credit, question reflect the civil actions27—a this a house not for resolve, keeping required judge court to one function for constitu but Schramm, supra. tional Jones v. amendment or inter- a different 24. laneous T.L.R. 801 which one of the trial breach of ease. other fraud, mune from tion, court. 563, does not in men’s United contribution for the cases, false Murray Administration libel, slander, compensation Ward a matter States, Provisions) (C.A.) ; promise my opinion (C.A.1922). whether imprisonment, v. credit trial by operation supra. James, ' Act. A Ford there is laws. malicious alter ^[1965] marry. law in cases of purposes Its modification discretion of the Justice v. adaptation seduction, of the work- to be Murray Blurton, 1 All.E.R. prosecu For (Miscel a form has im- all v. 27. 26. 25. pra, tion, certain Future ing tional 38.02 should not obscure the fact and con ment, Singleton See Reference, Note, ^[1] 81 Yale L.J. 112 assumed law fray” suit cited therein. J. courts of Ross v. Bernhard: for contribution was triable as in Moore, —a here, fray Schramm, and the authorities Jones England. Moreover, Federal Practice presenting origin liability Seventh v. there the contribut- Schramm, “in the thick of contribu- The Un- prior Amend- decided, tort. tradi- pro su- ]J pretation Seventh Supreme think Contractors Court —I The MUNICIPAL DISTRIBUTORS to a Petitioners, has a constitutional al., GROUP et Singleton’s negligence.28 on the issue of v. repeatedly COMMISSION, FEDERAL POWER policy favor “federal stressed that Respondent. ing jury con of historic trials Conner,

tinuing strength,” Inc., Brooks Simler v. Gas and Cities Service Company, Gas 610, cit Intervenors. U.S. 221 at Pet.) (3 Bedford, ing Parsons No. Neely, (1830); 7 L.Ed. 732 Scott Appeals, United States Court of Ridge supra; Byrd Rural Elec Blue District of Columbia Circuit. supra; Cooperative, Inc., Beacon tric Argued Jan. Westover, supra; Theatres, Inc. v. July 27, Decided Dairy supra. Queen, Wood, Therefore, the case remand would question of Sin

for a trial on

gleton’s negligence. jury to Were negligent, jointly Con

find Murray

tractors would be entitled

credit.29 being responsible Accord, made for all the con- & R.R. Sleeman C. O. * sequences ; reason, F.Supp. 830, which does not 833-834 * [Merry case 8 T.R. 186 bar, majority weather v. Nixan] cited at In reference to note 7 of voluntary early English seems to be one of a opinion, cited dissenting active tort. opinion [intentional] with suf- establish injuries apply arising certainty to torts or ficient that contribution [negligence], negligent joint mistakes or accidents in the awarded tortfeasors involuntary discharge English omissions in the and that of law as of courts by jury. of official duties. all trials at law as of 1791 were opinion in English at post-1791 Rand. 328 333. As reflect decisions states, that further the law case courts The decisions the above situation. presume contribution, prerequisite opinion, as a in this American courts cited many contract between the tortfeasors. This post-1791, that also demonstrate English jurisdictions, is an statement of the law accurate rule American time, among negligent allowing that it must be remembered contribution promise joint joint prohibiting between tort- contribu- tortfeasors feasors, implied assumpsit, joint was no among tion willful procedural formal- more than fiction—a be said with I think can continued. necessary by rigid ism made contribution confidence that Battersey’s Case, remedy of action. an un- law forms at law as available as Wooley supra; Gibbins, supra; dating Betts v. back least broken tradition supra. prom- century. Batte, party pled early If seventeenth proved properly, Virginia his and otherwise ise coui't case, majority at law re- is not he obtained contribution in footnote 7 cited authority actually promise gardless contrary position of whether contributing tort- Ad- been made Instead Thweatt’s above stated. say simply Administrator, Jones, su- answer feasor. It is no ministrator v. availability equitable. pra, con- is As merciful or contribution demonstrates Also, equitable. fair, The sentence contribution in the law courts. tribution equity, quoted immediately preceding contribu- available strictly majority in the technical reads: matter, why aid The crucial of the word. the law refuses sense The reason wrong- respect however, Seventh to enforce tortfeasors], Amendment, was as that contribution [intentional doers law, concurrently available at they from commit- intimidated by jury. danger wrong, ting each at law were trials and trials

Case Details

Case Name: Russell L. Dawson v. Contractors Transport Corp. Magazine Bros. Construction Corp.

Court Name: Court of Appeals for the D.C. Circuit

Date Published: Nov 13, 1972

Citation: 467 F.2d 727

Docket Number: 24533

Court Abbreviation: D.C. Cir.