Appeal, No. 215, Jan. T., 1954, from judgment of Court of Common Pleas No. 5 of Philadelphia County, Dec. T., 1949, No. 4851, in case of Dorothy Louise Puller and Mary Jane Puller, a Minor, by her guardian John Wesley Puller, to the use of East Broad Top Railroad and Coal Company v. John Wesley Puller and State Farm Mutual Automobile Insurance Company. Judgment affirmed.
William R. Klaus, with him Edward W. Madeira, Jr., Thomas E. Comber, Jr. and Pepper, Bodine, Frick, Scheetz & Hamilton, for appellant.
Robert A. Detweiler, for appellee.
Before Stern, C.j., Stearne, Jones, Bell, Chidsey, Musmanno and Arnold, JJ.
OPINION BY MR. CHIEF JUSTICE HORACE STERN
The question here presented involves the construction of a certain provision in a policy of automobile liability insurance.
An automobile owned and operated by John W. Puller in which his wife, Dorothy, and his minor daughter, Mary, were passengers, collided at a grade crossing with a locomotive of the East Broad Top Railroad and Coal Company. All three of them were injured and they brought an action in trespass against the Railroad Company. The latter obtained a severance of Puller's action and joined him as additional defendant in the suit of his wife and daughter on the ground that his negligence was a contributing cause of the accident. The jury returned verdicts in favor of the wife and daughter totaling $34,000.00 against both Puller and the Railroad Company as joint tort-feasors. The Railroad Company paid the verdicts in full and had the judgment entered thereon marked to its use against Puller, its purpose being to obtain from him contribution of one-half of the amount thus paid.*fn*
Puller was insured in the State Farm Mutual Automobile Insurance Company. The Railroad Company, as use plaintiff, issued attachment executions against Puller naming the Insurance Company as garnishee. Interrogatories and answers thereto having been filed, the use plaintiff moved for judgment on the pleadings. The court denied the motion and, instead, entered judgment for the garnishee, from which judgment the use plaintiff now appeals.
Whatever may be the law in the majority of other jurisdictions (as to which see 19 A.L.R.(2d) 1003, et seq.), it is established in our own State that a tort-feasor has a right of contribution against a joint tort-feasor even though the judgment creditor be the latter's spouse, parent, or minor child; in other words, a tort-feasor may recover such contribution even though, for some reason, the plaintiff who has obtained a judgment against both of them is precluded from enforcing liability thereunder against the joint tort-feasor: Kaczorowski v. Kalkosinski, 321 Pa. 438, 440, 441, 184 A. 663, 664; Maio, Executrix v. Fahs, 339 Pa. 180, 188, 14 A.2d 105, 109; Rau v. Manko, 341 Pa. 17, 22, 23, 17 A.2d 422, 425; Fisher v. Diehl, 156 Pa. Superior Ct. 476, 483-486, 40 A.2d 912, 916-918. The theory is that as between the two tort-feasors the contribution is not a recovery for the tort but the enforcement of an equitable duty to share liability for the wrong done. Undoubtedly, therefore, the use plaintiff in this case can recover from Puller half the amount of the judgment
it paid to Puller's wife and daughter. The question here, however, is whether the use plaintiff can make such recovery from Puller's insurance carrier, or, since the use plaintiff is merely entitled to take over Puller's right in that regard, whether Puller himself could recover from the Insurance ...