to stand because under the third party complaint a joint tort with contribution might have developed.
In the present case, the third party complaint does not charge or suggest concert of action between Ives and the subsequent receivers. The liability pleaded is clearly not that of joint tort feasors. See Betcher v. McChesney, 255 Pa. 394, 100 A. 124. So far from amending his complaint to assert the direct liability of the receivers to him, the plaintiff has stated in open Court that he declines to do so and in addition has moved to dismiss the complaint as to the present receiver, Reed.
It follows that the allegation that the subsequent receivers are liable directly to the plaintiff provides no ground upon which the third party complaint against them can be supported.
The other ground upon which the defendant asserts his right to bring in these defendants is their liability to him by way of indemnity or contribution. As has been pointed out, there is no suggestion that Ives and his successors were joint tort feasors. The question of the right to indemnity as between successive several tort feasors is one of extreme difficulty and has giver rise to a variety of judicial opinion. It is ably and clearly treated in an article by Professor Bohlen, Contribution among Tort Feasors, XXII Cornell L.Q. 469. I shall not attempt to reconcile the various conflicting views here. One thing seems certain, namely, that where between two successive tort feasors there is a difference in degrees of culpability, the one guilty of the major dereliction has never been allowed indemnity against the one guilty of the minor. The distinction has sometimes been expressed in terms of "active or passive" negligence, sometimes as "primary and secondary" liability.
The rule laid down by the Subpreme Court of the United States goes further and holds that there can be no indemnity in favor of a tort feasor, sued for or compelled to pay damages, as against one whose fault is of equal grade and similar in character. See Union Stock Yards Co. v. Chicago, etc., R. Co., 196 U.S. 217, 25 S. Ct. 226, 49 L. Ed. 453, 2 Ann.Cas. 525. Finding no Pennsylvania authority in conflict with the Federal rule, I accept it as binding, although it is probably not necessary to apply it in this case.
As between Ives and his successors it would seem clear that the fault of Ives was primary, more nearly active, and greater in degree than the mere nonaction of the receivers. It was his negligence or misconduct which originally caused the loss to the bank's creditors. The situation is not that of the creation of a condition which merely threatens loss or injury and which a succeeding person who comes into control of the instrumentality negligently fails to correct before the injury happens. Here the fault was merely a failure to attempt to obtain whatever could be salvaged and so reduce the loss already occasioned.
If the Comptroller had elected to sue, say Root, and had recovered, I have no doubt that Toot could have had indemnity from Ives. However, the most that can possibly be urged is that the character of the liabilities involved is substantially the same, and under the Union Stock Yards case that does not give the right to indemnity as claimed in the third party complaint.
As to contribution between wrongdoers whose misconduct is not concerted or joint: It has been suggested by writers that it might be desirable that the Court take jurisdiction of the whole controversy, assess the respective elements of blame, and apportion the damages accordingly without regard to any question of primary and secondary or active and passive fault. There is much to be said for this as a practical solution of a vexed problem. However, I find nothing to indicate that this can be done in the present state of the law. As I understand it, contribution between successive several tort feasors stands on the same basis as indemnity. Whenever contribution is allowed, the party seeking it must show a lesser degree of blame and not a greater.
As to the third party complaint against the Wheatley Estate: The same general considerations which have just been stated apply here, with the distinction that the liability of the Wheatley Estate, if any, arises from no tortious act, but is statutory and quasi-contractual. The third party complaint concedes that the withdrawals made by the Wheately Estate were from a deposit standing in the name of the Estate. All the Estate did was to receive payment of a debt, the payment of which had been suspended by the law for the time being, upon the appointment of the conservator. Of course the Estate would, ordinarily, be liable to return the money (leaving out of consideration any special defenses it may have had) and would thus be directly liable to the Comptroller, but, as in the case of Reed, the Comptroller has moved to dismiss the third party complaint, and so refuses the tender of this defendant. As against the Wheatley Estate Ives can have no contribution for reasons stronger than those in the case of the receivers. As a matter of fact, he does not claim either contribution or indemnity.
A consideration frequently moving the courts to exercise their discretion to allow third party complaints has been the desire to avoid circuity and duplication of actions. In this case, however, since the Comptroller refuses to sue the receivers or the Wheatley Estate, and since the defendant has no cause of action against any of them, all "disputed jural relations growing out of the same matter" can be resolved in the present action.
The motions to vacate leave to file the third party complaints are granted, and the complaints may be stricken.
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