United States District Court, Northern District of Illinois, E.D
March 13, 1956
EDWIN GEBOREK, VICTORIA GEBOREK, INDIVIDUALLY AND AS MOTHER AND NEXT FRIEND OF DELORES GEBOREK AND FLORENCE GEBOREK, MINORS AND MARY JANUSZ,
BRIGGS TRANSPORTATION COMPANY, A CORPORATION, AND CALHOUN SALES, INC., A CORPORATION.
The opinion of the court was delivered by: LA Buy, District Judge.
The above action arises out of an automobile accident in which
plaintiffs were injured and is based on diversity of citizenship
and requisite jurisdictional amount. Apparently three vehicles
were involved in the accident. Plaintiff has joined as
defendants, the companies whose alleged agents, servants or
employees operated the other two vehicles.
Calhoun Sales, Inc., alleged to be a Minnesota corporation, has
filed a motion to quash the service of summons upon it. It had
been served upon the Secretary of State of Illinois in the manner
provided by § 20a of the Illinois Motor Vehicle Act, Chapter 95
1/2, § 23, Smith Hurd Ann.Stats. The provisions of the Motor
Vehicle Act permitting service of process by substituted service
on a non-resident defendant by serving the Secretary of State
applies only to actions or proceedings growing out of the use of
the highways of the State of Illinois. Brauer Machine & Supply
Co. v. Parkhill Truck Co., 1943, 383 Ill. 569, 581,
50 N.E.2d 836, 148 A.L.R. 1208. The complaint alleges that the motor
vehicles involved were on the highways of the state of Wisconsin
and the accident occurred in Wisconsin. It is obvious, therefore,
that the action does not arise from the use and operation of a
motor vehicle on the highways of Illinois. The motion to quash
the substituted service upon the defendant, Calhoun Sales, Inc.,
by serving the Secretary of State pursuant to § 20a of the
Illinois Motor Vehicle Act must be sustained.
The defendant, Briggs Transportation Company, has filed its
answer to the complaint denying any negligence on its part; a
counterclaim against the plaintiff driver, Edwin Geborek,
alleging his negligence to be the proximate cause of the
injuries; and another counterclaim against Edwin Geborek together
with a cross-claim against Calhoun Sales, Inc. for property
damage to its vehicle. Subsequently, it filed a third party
complaint against Paul McCarthy alleging in Count I that he was
operating a motor vehicle as agent and servant of Calhoun Sales
in such a manner as to cause it to be driven into the rear of the
tractor-trailer unit of Briggs causing such tractor-trailer to be
pushed into the automobile driven by the plaintiff, Edwin
Geborek; that if upon trial it is found that Paul McCarthy was
negligent as alleged, Briggs is entitled to contribution from
Paul McCarthy; and, if a common liability to the plaintiffs is
found prays judgment against Paul McCarthy for such contribution.
Count II of said third party complaint asks recovery against Paul
McCarthy for the damage and the required repairs to the
tractor-trailer of the defendant, Briggs.
Defendant, Paul McCarthy, has filed a motion to dismiss the
third party complaint for failure to state a claim and for lack
of jurisdiction; to dismiss Count I on the ground that there is
no contribution between joint tortfeasors and to dismiss Count II
for the reason that it has no relation to the claim alleged in
the plaintiff's original suit.
Under Rule 14 of the Federal Rules of Civil Procedure, 28
U.S.C.A., a defendant may file a third party complaint upon any
person not a party to the action "who is or may be liable to him
for all or part of the plaintiff's claim against him." It appears
under the circumstances alleged in the pleadings that the
original defendant, Briggs, and the third party defendant, Paul
McCarthy, are joint tortfeasors.
It is axiomatic that a federal court in a non-federal case must
apply the law where the federal court is held, including its
conflicts of law rule. With certain exceptions noted in Gulf,
Mobile & Ohio R. Co. v. Arthur Dixon Transfer Co., 1951,
343 Ill. App.? 148, 98 N.E.2d 783, the state of Illinois does not
recognize the right of contribution between joint tortfeasors.
The present facts do not come within any of the cited exceptions
to that rule. However, Illinois courts have held that when an
accident occurs in another state and action is brought in
Illinois, the substantive rights and liabilities of the parties
will be determined in accordance with the law of the state where
the accident happened. O'Neal v. Caffarello, 1940, 303 Ill. App. 574,
25 N.E.2d 534; Keehn v. Braubach, 1940, 307 Ill. App. 339,
30 N.E.2d 156; Rapers v. Holmes, 1937, 292 Ill. App. 116,
10 N.E.2d 707. The law of the place of the wrong is determinative of the
right to contribution. Thus, if under Wisconsin law there is a
substantive right of contribution between joint tortfeasors, it
will be recognized and applied in Illinois and the procedure for
its enforcement in the federal courts is established by Rule 14.
In Western Casualty & Surety Co. v. Milwaukee General Const.
Co., 1933, 213 Wis. 302, 305, 251 N.W. 491, 492, the Supreme
Court of Wisconsin analyzed the rights which joint tortfeasors
have as follows:
"Some confusion seems to exist as to when joint
tort-feasors are subject to a common liability.
Logically, it would appear that the right comes into
being when the combination of negligent acts gives
force and direction to events necessarily resulting
in an occasion for paying damages. This does not
depend upon an action being begun. A lawsuit may be
necessary to settle the differences arising between
the parties, but it is not within the province of a
court as an original matter to give this right or
take it away. It has its inception at the time the
negligence of the alleged joint tort-feasors concurs
to bring the injuries to the third person. It springs
up at the time, and then and forever afterwards,
until the claim is outlawed, they or either of them
are under a liability to pay for injuries their
negligent acts have caused. This inchoate right
ripens into a cause of action when one of the joint
tort-feasors pays more than his proportionate share
of the claim for which all are liable."
The right to contribution is, therefore, an unenforceable right
until such time as one of the joint tortfeasors pays more than
his fair share of the total damages resulting from their joint
negligence, at which time it ripens into a right to legal action
to recover therefor. Frankfort General Ins. Co. v. Milwaukee
Ry. & Light Co., 1919, 169 Wis. 533, 173 N.W. 307; Ainsworth v.
Berg, 1948, 253 Wis. 438, 34 N.W.2d 790, vacated 35 N.W N.W.2d
911; State Farm Mut. Automobile Ins. Co. v. Continental Casualty
Co., 1953, 264 Wis. 493, 59 N.W.2d 425. The Wisconsin third party
statute is as follows:
§ 260.19(3) "A defendant, who if he be held liable
in the action, will thereby obtain a right of action
against a person not a party may apply for an order
making such person a party defendant and the court
may so order." Wis.Stat. 1945.
The statute is permissive in its language and the joinder is
within the discretion of the court. The above section gives
recognition to the inchoate right of contribution existing at the
time of the filing of the pleadings and is designed to avoid a
circuity of action which would result where judgment is procured
against and paid by one tortfeasor, who thereafter brings an
action against the other tortfeasors to recover the amount of
contribution required. It is a procedural device.
The court is of the opinion that the third party plaintiff,
Briggs Transportation Company, has no substantive right to
enforce which the Wisconsin statute or law has given him, but has
only an inchoate right which is recognized from a procedural
point of view to avoid a circuity of action; that inchoate right
does not become a substantive or enforceable right until he has
paid more than his share of the judgment. For these reasons the
motion of Paul McCarthy to dismiss Count I of the third party
complaint against him must be sustained.
Count II of the third party complaint is based upon property
damage and cost of repairs incurred by virtue of the collision.
Rule 14 permits a third party complaint where the third party
defendant "is or may be liable to him for all or part of the
plaintiff's claim against him." It contemplates the impleading of
a third party where such third party is also liable for causing
the damage to the plaintiff. It is not a device for bringing into
an action any controversy which may have some relationship to it.
The claim of Briggs Transportation Company for damages and
repairs to its tractor-trailer is separate and distinct from the
plaintiff's claim and joinder of that claim on the basis of Rule
14 is not proper.
An order has this day been entered sustaining the motion of
Calhoun Sales, Inc., to quash the service of summons, and
sustaining the motion of Paul McCarthy to dismiss the third party
complaint against him.
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