against him, the claimant cannot recover contribution, even though such concurring negligence was a proximate cause of the injury. 13 American Jurisprudence p. 48; Annotation, 19 A.L.R.2d p. 1003 and cases cited thereunder.
Pennsylvania has apparently adopted a minority view permitting contribution between joint tortfeasors even when the injured party has no cause of action against one of the same, espousing the theory that as between two tortfeasors the contribution is not a recovery for the tort but the enforcement of an equitable duty to share liability for the wrong done. Puller v. Puller, 380 Pa. 219, 110 A.2d 175; Fisher v. Diehl, 156 Pa.Super. 476, 40 A.2d 912; Davis v. Miller, 385 Pa. 348, 123 A.2d 422; Maio v. Fahs, 339 Pa. 180, 14 A.2d 105; Rau v. Manko, Beck New York Shoe Co., Inc., 369 Pa. Beck New York Shoe Co., Inc., 369 Pa. 112, 85 A.2d 698.
I am satisfied, however, that equity, fair play, and justice demand that a joint tortfeasor whose liability is purely statutory should not enjoy the fruits of contribution from a common law joint tortfeasor against whom the This conclusion is given credence under Rule 14(a) of the Federal Rules of Civil Procedure, 28 U.S.C.A., under which rule all third party actions are brought into this court, providing, inter alia, that a third party defendant may assert against the third party plaintiff any defenses which the third party plaintiff has to the plaintiff's claim. It must follow, therefore, as a necessary concomitant that since the third party defendant, being a common law tortfeasor, may invoke the defense of contributory negligence against the plaintiff, that the same defense would be available against the third party plaintiff. Thus plaintiff's inability to recover from Warner by reason of his contributory negligence must as a matter of law deny Railroad's claim against Warner for contribution.
After again applying most reflected judgment to the record, I believe that under all the credible evidence justice sustains the jury verdict as rendered.
Since plaintiff has realized a payment in the amount of $ 1,375 from Warner as consideration for the release given Warner, principles of justice and equity should bar plaintiff from recovering twice for the identical accident and injuries. I shall, therefore, direct that Railroad be credited with $ 1,375 and that said amount be deducted from the judgment upon satisfaction of the same.
An appropriate Order is entered.