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03/05/70 Ling Jones, v. Charles James Schramm


March 5, 1970




Wright, Leventhal and Robb, Circuit Judges.


As Amended on Rehearing May 7, 1970.



An action in tort for damages for personal injuries was brought by the Brandons, *fn1 not parties to this appeal, against two defendants, appellant Jones (in whose auto Mrs. Brandon was riding) and appellee Schramm, whose vehicles collided on the 11th Street Bridge in Southeast Washington. Plaintiff claimed each was operated negligently. Defendant Jones, appellant, cross-claimed against defendant-appellee Schramm. On February 26, 1968, the jury returned a verdict for plaintiffs against Schramm for $15,000, a verdict for defendant Jones against plaintiffs, and a verdict for defendant Jones in his cross-claim against defendant Schramm in the sum of $1,100.

On March 11, 1968, the trial court entered judgment for Schramm, in his cross-claim against Jones for contribution, in the sum of $7,500, or one half the sum actually paid by Schramm to plaintiffs, whichever was less. We hold this entry of judgment on the cross-claim for contribution was error and reverse.

In many states it is confirmed by statute, but the District of Columbia is one of the jurisdictions which established a right of contribution even in the absence of statutory authority, at least so long as the person seeking contribution was not guilty of wilful misconduct. *fn2

Contribution is an "equitable doctrine based on principle of justice," -- which is not dependent on contract, joint action, or original relationship of the parties. *fn3 It imposes a duty, in the case of two (or more) tortfeasors who have a concurrent liability to the same victim, whereby the tortfeasor who for any reason makes payment on his liability to the victim may receive a pro rata contribution from the concurrent tortfeasor. Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361 (1968).

The doctrine of contribution originated in the courts of equity, *fn4 and it was announced in this jurisdiction in a leading opinion by Judge Groner, to sustain a suit brought in equity by one tortfeasor against the other. *fn5 We may assume, therefore, as it has apparently been generally assumed, that when contribution is sought against a defendant who was not sued by plaintiff, as is permitted by our decisions, *fn6 the claim sounds in equity and the court acts as finder of the fact to determine whether the second tortfeasor from whom contribution is sought was negligent, and therefore liable to the victim.

This does not mean, however, that the court deciding the claim of contribution may act independently of the adjudications made in the original action by plaintiff. The equitable origin of the action may not be pushed to the point of defeating good administration of justice, especially since there is authority for the rule that contribution, once recognized, will be enforced at law as well as in equity. *fn7 And so where the contribution defendant is brought into the original action as a third-party defendant, he is "in the thick of the fray, and entitled to participate to the fullest extent," and hence he "is bound by the adjudication of the third-party plaintiff's liability to the original plaintiff." *fn8

The same considerations apply concerning the issue of the liability to the plaintiff of the contribution defendant. It is a prerequisite of contribution that the contribution defendant must have been originally liable to plaintiff. *fn9 Modern jurisprudence dictates that as many different aspects of a single controversy be resolved in a single court litigation, to the extent feasible. Where both alleged tortfeasors are joined as co-defendants in an action brought by the victim, the liability to the victim of the second tortfeasor, from whom contribution is sought, is not properly assigned to the non-jury domain of the equity court as finder of fact. If the jury determines on the facts that the second alleged tortfeasor was not negligent, that co-defendant has been authoritatively adjudged not a tortfeasor and is not liable in contribution.

This analysis, which relieves appellant Jones, is not rendered inapplicable because of the procedural stance of this case. *fn10 We see no basis for a contention by plaintiff who has lost his case against a defendant that he has a legitimate interest in seeing to it that that defendant does make a payment, albeit it is made directly to the other defendant as a contribution. As to the defendant seeking contribution, he may proceed against a concurrent tortfeasor but he has no legitimate claim to proceed against someone who has been lawfully and authoritatively adjudged not to be a tortfeasor at all, at least where, as here, the defendant seeking contribution was a party to the proceeding wherein the plaintiffs' claims were determined and there is no contention that further evidence is available in the claim for contribution which could not be adduced in the litigation on plaintiffs' claims.

The situation is different from that applicable in a case that involves the liability of both the United States Government and another. The liability of the Government under the Tort Claims Act is to be determined by the court on the facts as well as the law, and the court in exercising this fact-finding function is not trammeled by the findings made by the jury in determining the liability fact as to the other persons charged with liability. Eastern Air Lines v. Union Trust Co., 95 U.S.App.D.C. 189, 221 F.2d 62 (1955); Busey v. Washington, 225 F. Supp. 416 (D.D.C.1964). In the case before us, however, the jury did have jurisdiction to determine the facts on which the liability of the appellant depends, and that liability to plaintiff is the predicate for any liability in contribution.

Our discussion in the previous paragraph applies only as to a jury's verdict rendered in accordance with the law. Where a verdict is not supported by sufficient evidence, or is properly set aside as contrary to the overwhelming weight of the evidence, that jury verdict is not a valid determinant of the facts underlying liability either to plaintiff or in contribution. The case before us might take a different stance if there were even a suspicion that the court would have been prepared to set aside the jury's verdict in favor of appellant Jones, but that it did not do so because no such request had been made.

A verdict in favor of one defendant on the plaintiff's claim may be subject to challenge by the other defendant -- even though plaintiff is satisfied with the outcome of a verdict against one solvent defendant -- to the extent that the defendant held liable may request a ruling that the verdict exculpating the other defendant is subject to being set aside, and hence is not a binding determination so far as the contribution claim is concerned. This rule would be in the interest of justice, and the doctrine of contribution, and allied rules, rest on considerations of equity and justice not only in terms of historical derivation, but also in regard to the shaping and definition that is required for application of the doctrine to modern conditions for determination of controversies. See e.g. Brightheart v. McKay, 136 U.S.App.D.C. 400, 420 F.2d 242, April 9, 1969; Martello v. Hawley, 112 U.S.App.D.C. 129, 300 F.2d 721 (1962).

The record before us makes it clear, however, that while the court reached a different conclusion from the jury's in regard to appellant's negligence, insofar as the matter was before him as a trier of fact, he considered there was support in the evidence for the verdict in favor of defendant-appellant Jones on plaintiff's claim. *fn11

In closing we note that we have not relied on the circumstance that there was no appeal from the judgment on the $1,100 verdict in favor of appellant Jones, for damages against appellee and co-defendant Schramm. *fn12 If that had been a prior litigation, it would have provided the basis for an estoppel by judgment which would have precluded appellee from thereafter asserting an inconsistent claim for contribution against appellant. Brightheart v. McKay (supra). But here appellee's failure to appeal the modest judgment obtained by appellant was in the context of a proceeding wherein the court had already announced that it would make a ruling for contribution in favor of appellee, and therefore there is no proper scope for the doctrine of estoppel.

The judgment appealed from is reversed and the cause remanded with instructions to dismiss appellee's claim for contribution from appellant.

So ordered.

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