unless modified at the trial to prevent manifest injustice. The court made such modification as it felt would work justice between the parties.
Defendant also claims prejudice because plaintiff administrator was allowed to testify when he was not listed in the pretrial narrative as a liability witness, nor was he listed as a liability witness in defendant's interrogatories asking for the names of all classes of witnesses. The critical liability testimony of plaintiff administrator was that his wife was familiar with the crossing and the erratic functioning of its signal lights.
The plaintiff was a party to the action as the administrator of both decedents. In addition he was a surviving husband of one decedent and a surviving son of the other decedent. In these relationships he was in the words of Geelen v. Pennsylvania Railroad Company, 400 Pa. 240, 161 A.2d 595, 91 A.L.R.2d 1, "Decedent's widow, while technically not a party of record in her individual capacity, was a party beneficially and directly interested." (p. 245, 161 A.2d p. 598). It was he who supplied the information in the interrogatories. He was subject to being called to testify by the opposing party and cross-examined freely as to any matter relevant and material to the issues. He was known to defendant at all times prior to the action and was subject to being deposed for discovery. The purpose of interrogatories as to the names of witnesses is to lead to the discovery of admissible evidence. We are of the opinion that the failure to list himself as a "liability witness" in answer to interrogatories or as a witness in the pretrial narrative was not a matter of calculated deception, but a natural interpretation of the word "witnesses" as meaning those whom he could call in support of his own testimony. Furthermore, the plaintiff was specifically listed by the third-party defendant in answer to an interrogatory seeking the name of liability witnesses, and was listed as a witness on the Pretrial Narrative of Third-Party Defendant. We fail to see the prejudice to defendant. We do not hold this omission to be similar in kind or degree to defendant's failure to answer the plaintiff's Supplemental Interrogatory numbered 17, after the court had heard argument on the objection to it, had simplified and restricted it, and then ordered an answer thereto, further compounded by defendant's counsel's convincing argument that a more responsive answer was impossible to secure. The defendant railroad had a department whose special function it was to collect the type of information plaintiff was seeking.
We have considered the other reasons advanced by the railroad in support of its motion for new trial and find none which compel us to grant the motion. Those directed to the charge of the court we have partly discussed previously. Otherwise, viewing the charge as a whole, we can find no grounds for granting the motion.
Defendant's Motion for a New Trial will be denied.
THIRD-PARTY DEFENDANT'S MOTION FOR JUDGMENT N.O.V.
The controlling question in this Motion for Judgment N.O.V. in accordance with motion for directed verdict is whether a defendant who has been found guilty of wanton and wilful negligence may enforce a right of contribution against a third-party defendant who has been found not guilty of wanton and wilful negligence.
In a third-party action for contribution in a Federal Court proceeding for death sustained in Pennsylvania, the Pennsylvania law governing contribution between joint tort-feasors governs. Gartner v. Lombard Brothers, 197 F.2d 53 (3rd Cir. 1952). There is no case of the appellate courts of Pennsylvania governing this question, nor has any Federal Court made a determination of what the law of Pennsylvania would be in this situation. We must, therefore, attempt to determine what the applicable Pennsylvania law would be in such a case. Erie R.R. Co. v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Ruhlin v. New York Life Ins. Co., 304 U.S. 202, 58 S. Ct. 860, 82 L. Ed. 1290 (1938); McClaskey v. Harbison-Walker Refractories Co., 138 F.2d 493 (3rd Cir., 1943).
Pennsylvania originally followed the common law rule that there was no right of contribution between joint tort-feasors. Oakdale Borough v. Gamble, 201 Pa. 289, 50 A. 971. The ancient rationale of the common law rule was that the court would not lend its aid to a wrong-doer. This rule was subject, nevertheless, to the exception that a defendant only secondarily liable for a tort might recover indemnity for the full amount which he was alleged to pay in damages from one primarily liable. Brookville Borough v. Arthurs, 152 Pa. 334, 25 A. 551 (1893). Thus, an employer, liable for the tort of his servant under the doctrine of respondeat superior, has a right of action over for indemnity against his employee, the active tort-feasor. Koontz v. Messer, 320 Pa. 487, 181 A. 792 (1935).
In Goldman v. Mitchell-Fletcher Co., 292 Pa. 354, 359, 141 A. 231 (1928), the strict rule of no contribution was discarded in Pennsylvania by judicial construction. The Court determined after reference to numerous authorities, that the rule was properly limited to those cases where there has been an intentional violation of the law, where there was personal participation, personal culpability, personal knowledge. The court held that the rule did not apply to torts where the party claiming contribution was guilty of mere negligence. In conclusion the court held:
"We are not determining that contribution always exists between joint tortfeasors; we are deciding only that, in this particular instance, if that be the result, we do not look upon it as one that is improper, unjust, or without sanction in law. There may be cases in which such outcome should not be sanctioned; they will be disposed of in the future when they are brought before us for determination." (pp. 365-366, 141 A. p. 235).
This view has also been adopted judicially by a number of jurisdictions prior to the enactment of statutory provisions allowing contribution. A summary statement of the principle relied upon by the courts of these jurisdictions was that:
"The rule which bars contribution among joint tortfeasors is not appropriately applied to joint tortfeasors guilty of nothing more than negligence; hence, there is a common law right of contribution as between such joint tortfeasors." Annot.: 60 A.L.R.2d 1366, at p. 1377.