Underwriters at Lloyds v. Smith
208 N.W. 13
Minn.
1926
Check Treatment
Taylor, 0.

This is an appeal from an order of the municipal court of the city of Minnеapolis! sustaining a demurrer to the complaint on the ground that the facts stated do not constitute a cause of action. ■

It appears from the complaint that plaintiff had insured E. O.l Dahlquist against liability for injuries resulting from; the opеration' of a truck owned by him; that a collision occurred between this truck and defendant’s automobile in which one Stewart, a passenger in defendant’s аutomobile, was injured; that Stewart recovered a judgment of $1,295.70 against Dahlquist for such injuries which judgment plaintiff, as insurer of Dahlquist, had paid; that the accident hapрened in consequence of the concurring negligence of Dahlquist and dеfendant; and that plaintiff had become subrogated to all the rights of Dahlquist agаinst defendant. Plaintiff asserts that defendant as a joint tort-feasor is liable to Dahlquist for one-half the amount he was compelled to pay Stewart and аsks judgment therefor.

The question presented is whether the-general rule that onе of several ‍​‌​​‌​‌​‌‌‌​‌‌‌​​‌​​​‌​​​​‌​​‌‌​​‌​‌‌‌‌​‌‌​​‌​​​‍joint tort-feasors who has been compelled to pаy damages *390 for the wrong committed cannot enforce contribution from thej other tort-feasors, applies where the liability results in consequence ' of the joint or concurring negligence of each while engaged in lawful undеrtakings.

It is the general rule that there is no right of contribution be-: tween wrongdoers, and that the fact that one wrongdoer has been: compelled to respond in damages for the wrong gives him no claim j against other wrongdoers which the courts will recognize or enforce.1 6 R. C. L. 1054, et seq. 13 C. J. 828; Union Stock Yards Co. v. C. B. & Q. R. Co. 196 U. S. 217, 25 Sup. Ct. 226, 49 L. ed. 453, and аnnotation to ‍​‌​​‌​‌​‌‌‌​‌‌‌​​‌​​​‌​​​​‌​​‌‌​​‌​‌‌‌‌​‌‌​​‌​​​‍this case in 2 Ann. Cas. 528; Tacoma v. Bonnell, 65 Wash. 505, 118 Pac. 642, 36 L. R. A. (N. S.) 582, and annotation to this case in Ann. Cas. 1913B, 938. There are many exceptions 1 to this rule however and this court in Ankeny v. Moffett, 37 Minn. 109, 33 N. W. 320, said that it does not apply where the ground of liability is simply negligence on the part of each in carrying on some lawful business, but only where the person seeking contribution must be presumed to have known that he was doing an illеgal act. This doctrine was reiterated in slightly, varying language in Mayberry v. N. P. Ry. Co. 100 Minn. 79, 110 N. W. 356, 12 L. R. A. (N. S.) 675, 10 Ann. Cas. 754. It was ‍​‌​​‌​‌​‌‌‌​‌‌‌​​‌​​​‌​​​​‌​​‌‌​​‌​‌‌‌‌​‌‌​​‌​​​‍also recognized in Fortmeyer v. Nat. Biscuit Co. 116 Minn. 158, 133 N. W. 461, 37 L. R. A. (N. S.) 569.

It may be that the majority of courts apply the general rule where the ground of liability is negligence only. 13 C. J. 830. But the rule rеcognized by this court as governing such cases is well supported by authority. In Ellis v. C. & N. W. Ry. Co. 167 Wis. 392, 167 N. W. 1048, the Wisсonsin court reviewed the authorities exhaustively, beginning with the English cases where the rule originated, and reached the conclusion that:

“Where the element of moral turpitude is not involved and there is no wilful or conscious wrong betweеn the parties ‍​‌​​‌​‌​‌‌‌​‌‌‌​​‌​​​‌​​​​‌​​‌‌​​‌​‌‌‌‌​‌‌​​‌​​​‍against whom a judgment in a tort action is recovered, there may be contribution between the tort-feasors.”

*391 Referring to Union Stock Yards Co. v. C. B. & Q. R. Co. supra, in wliicb tbe opрosite view was adopted tbe court said:

“We are not inclined to follоw it, since we believe the doctrine stated in tbe decisions heretoforе cited is the more equitable and just doctrine, and well supported by authority frоm tbe English cases down.”

That case grew out of a collision at a railway crossing caused by tbe negligence ‍​‌​​‌​‌​‌‌‌​‌‌‌​​‌​​​‌​​​​‌​​‌‌​​‌​‌‌‌‌​‌‌​​‌​​​‍of both tbe railway company and a trаction company. In Mitchell v. Raymond, 181 Wis. 591, 195 N. W. 855, tbe Wisconsin court applied tbe dоctrine of tbe Ellis case to a state of facts almost identical with tbe facts of tbe instant case. Two automobiles collided. Both drivers were negligent. A. passenger in one recovered a judgment against tbe driver of tbe othеr. It was held that this driver was entitled to contribution from tbe driver of tbe car in wbicb tbe passenger was riding. . Among tbe other cases supporting this doctrine are: Hobbs v. Hurley, 117 Me. 449, 104 Atl. 815; Furbeck v. I. Gevurtz & Son, 72 Ore. 12, 143 Pac. 654, 922; Acheson v. Miller, 2 Oh. St. 203, 59 Am. Dec. 663; Bailey v. Bussing, 28 Conn. 453; Jacobs v. Pollard, 10 Cush. (Mass.) 287, 57 Am. Dec. 105; Nickerson v. Wheeler, 118 Mass. 295; Armstrong County v. Clarion County, 66 Pa. St. 218, 5 Am. Rep. 368; Johnson v. Torpy, 35 Neb. 604, 53 N. W. 575, 37 Am. St. 447; First Nat. Bank v. Avery Planter Co. 69 Neb. 329, 95 N. W. 622.

We adhere to tbe rule stated in tbe Ankeny and Mayberry cases deeming it tbe more just and equitable rule and tbe order appealed from is reversed.