O'KEEFE v. Baltimore Transit Co.

Collins, J., delivered the opinion of the Court. This is an appeal from a judgment entered on the verdict of the trial judge, sitting without a jury. On August 13, 1948, the Baltimore Transit Company, appellee, entered a suit for contribution against the ³⁴⁸ appellant as a joint tort-feasor. The declaration, for the purposes of this case, alleged that on about July 14, 1947, three suits were entered: one suit by Mildred Ail-stock, a passenger in a taxicab owned by the defendant and operated by his agent; one suit by T. Bayard Williams, Administrator of the Estate of Anthony De Luca, deceased, who had likewise been a passenger in the taxicab of the defendant; and. one suit by Julia De Luca, widow of Anthony De Luca, deceased, all against the Baltimore Transit Company, as well as the two operators of its street car, and against the defendant herein, Arthur O’Keefe, and his driver or operator, William Turner.

The plaintiffs in those actions sought to recover damages in the total amount of $66,000.00 for the death of Anthony De Luca, for his medical and hospital expenses and conscious pain and suffering; and for injuries to his daughter, Mildred Ailstock, which claims arose out of an accident which occurred on February 18, 1947, about 12:23 A.M., when a taxicab owned by the defendant, O’Keefe, and operated by his agent, William Turner, “in a careless, reckless and negligent manner in an easterly direction from south across the open T rail double tracks of the Transit Company known and designated as a railroad crossing, where St. Helena Avenue crosses said tracks by smooth pavement from Dundalk Avenue when the street car of the plaintiff, The Baltimore Transit Company, was in plain view approaching said intersection along the railroad right-of-way which street car was seen or should have been seen by the defendant, O’Keefe’s Agent, servant 'or employe, Turner, when he was in a place of safety, or in time to have removed his taxi-cab from the tracks of the Transit Company at the railroad crossing, so that by reason of his said failure so to do, a collision occurred and one of the passengers in said taxi-cab, Anthony DeLuca was killed and his daughter, Mildred Ailstock, the other passenger was injured. Subsequently, on or about the 19th day of June, 1948, before said suits were ³⁴⁹ called for trial, said suits were settled in full by this plaintiff by payments before judgment as follows: 1. T. Bayard Williams, Administrator, $1,500.00 2. State of Maryland, to use of Julia DeLuca, wife of Anthony DeLuca, deceased $13,500.00 3.

Mildred Ailstoek $350.00 or total of $15,350.00 and proper Releases were taken so that the liability of the defendant herein to the aforesaid plaintiffs in the three suits indicated was extinguished in full by said settlement as well as to protect this plaintiff in its claim for contribution under the applicable Joint Tort Feasors Act of 1941 and amendments thereto. WHEREFORE, the Plaintiff says that the accident out of which said injuries and settlements arose was caused and contributed to by the negligence of the defendant, O’Keefe, his agent, servant and employe, and under said joint Tort Feasor Act as amended the defendant has become and is liable to the plaintiff as a joint tort feasor for his proportion of fifty per centum of the joint liability in damages in said respective cases and costs of suit. WHEREFORE, this suit for contribution under the joint tort-feasor’s act is brought and the plaintiff claims $16,000.00 for damages.” The appellant demurred generally to the declaration. After the demurrer was overruled and general issue pleas filed, the case was tried by the trial judge, without a jury, and from a judgment for $7,675.00 rendered for the plaintiff, appellee here, and against the defendant and appellant, the appeal comes to this Court.

The appellant contends primarily that the appellee, Baltimore Transit Company, could not without the consent or participation of the appellant, O’Keefe, settle out of court a case then pending against both of these parties and secure a release from the plaintiffs in that case and then, while that case still remains pending institute an independent action for contribution against the appellant, O’Keefe. As alleged in the declaration on June 19, 1948, before the suits were called for trial, they were settled in full by the appellee here by payment ³⁵⁰ before judgment. Releases were taken so that the liability of the appellant and appellee were extinguished in full. After taking these releases, and before the releases were filed in the pending cases, the action of contribution was filed by the appellee.

It is now provided by Chapter 344, Section 22 of the Acts of 1941, Article 50, Section 21, 1951 Code: “(Right of Contribution; Accrual Pro Rata Share.) (a) The right of contribution exists among joint tortfeasors, (b) A joint tortfeasor is not entitled to a money judgment for contribution until he has by payment discharged the common liability or has paid more than his pro rata share thereof, (c) A joint tortfeasor who enters into a settlement with the injured person is not entitled to recover contribution from another joint tortfeasor whose liability to the injured person is not extinguished by the settlement.” Appellant contends that because of the last sentence of the Act of 1941, Chapter 344, Section 27 (c), Article 50, Section 26 (c), 1951 Code, this claim of the appellee for contribution could not be brought in a separate and independent action. The Act of 1941, Chapter 344, Section 27 (c), and hereinafter referred to as Section 27 (c), provides: “A pleader may either (a) state as a cross-claim against a co-party any claim that the co-party is or may be liable to the cross-claimant for all or part of a claim asserted in the action against the cross-claimant; or (b) move for judgment for contribution against any other joint judgment debtor, where in a single action a judgment has been entered against joint tortfeasors one of whom has discharged the judgment by payment or has paid more than his pro rata share thereof. If relief can be obtained as provided in this subsection no independent action shall be maintained to enforce the claim for contribution.” Assuming that this Act was in point of time effective in the case at bar, it is plain that Section 27 (c) (a), supra, applies at the beginning of the proceedings and during the pleadings and that Section 27 (c) (b) applies where the judgment has been entered. In the instant case settlement was made and ³⁵¹ releases secured after the pleadings were filed and before judgment was entered.

Therefore, relief could not have been obtained by the appellee here against the appellant for contribution under Sections 27 (c) (a) or 27 (c) (b) and the last sentence of Section 27 (c) does not apply to the instant case. Such a contingency as has now arisen is not provided for in Section 27 (c) supra. The General Rules of Practice and Procedure III Joinder of Parties and Claims; Third Party Practice were adopted by this Court November 27, 1947, effective January 1, 1948. Rule 7 thereunder, provides that those rules supersede Code, Article 50, Section 26, 1951 Code, Page 4873, 1951 Code.

As hereinbefore set forth, although the original action against the appellee and appellant here was instituted on July 17, 1947, settlement of the three cases was not made by the appellee and releases secured until June 19, 1948, when its right of contribution arose. The effect of these new Rules, supra, was not to obliterate existing substantial rights, but to effect only the procedure and remedies for the enforcement of those rights and the new Rules therefore certainly apply to future actions. Ireland v. Shipley, 165 Md. 90, 98 , 166 A. 593 . Kelch v. Keehn, 183 Md. 140 , 36 A. 2d 544 .

Compare E. Coast Lines v. M. & C. C. of Balto., 190 Md. 256, 279 , 58 A. 2d 290 , 2 L. R. A. 2d 386. There is no requirement in these rules that an action for contribution must be brought in the original action and cannot be brought in an independent action. Of course, one purpose of the new Rules is to avoid multiplicity of suits. By bringing this independent action it was not necessary to proceed further with the three pending suits.

It was said in the case of Consolidated Coach Corporation v. Burge, 245 Ky. 631 , 54 S. W. 2d 16 , at page 18, 85 A. L. R. 1086: “The rendition of judgments against the Consolidated Coach Corporation and their payment were not, under section 484, Ky. Statutes, a prerequisite and condition precedent to its right of action against Burge to enforce contribution as against him. The ³⁵² act of payment of conpensation in the satisfaction of judgment or compromise to the injured passengers by' the Consolidated Coach Corporation, if their injuries were the direct and proximate result of the joint and concurrent negligence of the drivers of the bus and the truck, fixed and determined its right of action against Burge. However, not being a party to the compromise settlements of the Consolidated Coach Comporation with the passengers, he is not bound thereby.

But if the amounts were in good faith paid in pursuance to compromises, made honestly and in good faith, they are prima facie correct, with the’ legal right in Burge to offer evidence tending to show the nonexistence of any fact essential or necessary to establish he was not liable at the time to the injured passengers, or that the compensation that was páid by the Consolidated Coach Corporation to either or all of them, was not paid in good faith, or not in accordance with a compromise, or was unreasonable or excessive. * * * The action must be tried so far as his liability is concerned as if this was an action by the passengers against him. Verhelst Construction Co. et al. v. Galles, 204 Wis. 96 , 235 N. W. 556 . The measure of recovery is one-half of the amount paid to each of the passengers, by the Consolidated Coach Corporation in accordance with its compromises with them; in no event an amount in excess of. the. one-half, of the total sum paid by it to them. The burden rests upon Burge to show that the compromises were not made honestly and- in good faith, or that -the amounts paid thereunder were unreasonable or excessive.” See also Employers Mutual Casualty Company v. Chicago St. P. M. & O. Ry.

Co., 235 Minn. 304 , 50 N. W. 2d 689, 693 ; Deatley’s Adm’r v. Phillips, Ky., 243 S. W. 2d 918 . Appellant further contends that the Baltimore Transit Company, appellee, did not sustain its burden of proof and show that the appellant was guilty of such negligence as entitled it to contribution. Anthony DeLuca and his daughter, Mildred Ailstoek, entered appellant’s taxicab ³⁵³ on Dundalk Avenue at a cab stand near the intersection with St. Helena Avenue. There, Dundalk Avenue, running north and south, is a four lane boulevard with two lanes for traffic separated by the right of way owned by the Baltimore Transit Company, appellee, on which there were two sets of open “T” rails constructed.

At the Dundalk Avenue intersection with St. Helena, which runs east and west, the public crossing is paved and is flush with the regular road bed. There was no automatic traffic control signal in operation at this well lighted intersection on the night of the accident, although normally this is in operation. The driver of the taxicab with the two passengers started south on Dundalk Avenue, made a left turn into St. Helena Avenue to get into the north bound lane on Dundalk Avenue and proceeded to cross the street car tracks. Mr. Woodrow Millard, at the time of the accident, the student motorman of the street car which was proceeding north on Dundalk Avenue, testified that the block between St. Helena Avenue where the accident occurred and Baltimore Avenue, which is the next block south, is quite a long straight block.

He said the taxicab stopped momentarily on the south bound tracks when the street car was approximately sixty feet distant and he thought it was going to stop finally. However, it proceeded and stopped with its rear on the north bound tracks when the street car was thirty feet distant. He then cut the power and threw the street car into emergency. It drifted on down and struck the right rear fender of the cab and stopped about the length of the entire street car beyond the intersection.

Mr. John 0. Robinson, Jr., testified that on the night of the accident he was on the platform of the streetcar just about over Mr. Millard’s left shoulder, serving as his instructor, and that this was the first day that Mr. Millard had been with him on this particular streetcar. He said when the streetcar was about one hundred feet from the intersection at St. Helena Avenue he saw with the headlights the taxicab “sitting right between the ³⁵⁴ southbound track”. Millard was ringing the bell and blowing the whistle and the streetcar was proceeding approximately at ten miles an hour.

When the streetcar was about sixty feet distant the taxicab “made a jump from the southbound track” and stopped, when the streetcar was thirty feet distant, with its right rear fender and the rear wheels on the northbound track. After the accident the cab was sitting more or less on a southeasterly angle. The impact had been on the right rear fender of the cab. He further said that proceeding at five miles an hour it would take approximately forty to sixty feet to stop the two streetcars under good conditions, and the conditions were good that evening.

Mrs. Mildred DeLuca Ailstock, a passenger in the cab, testified that she was on the back seat of the cab behind the driver. The driver made a lefthand turn at the corner and stopped on the southbound track. Traffic was coming north on Dundalk Avenue and the cab driver pulled over on the northbound track and stopped because of the automobile traffic and the streetcar was not close enough to interfere with the cab at that time. The driver of the cab had gone as- far over the northbound •track as he could, without colliding with the automobile traffic.going north on Dundalk Avenue.

She first saw the streetcar at Baltimore and Dundalk Avenues when the cab was on the southbound track. She looked again when the cab had gone over to the northbound track and the streetcar was then near the Skyview Restaurant. She said the cab did