These suits, pending now in the Ingham circuit, started out as actions for negligence. Plaintiff Gorman Moyses' suit arose out of a head-on collision of primary defendant Spartan's dump truck with his Willys station wagon.
Primary defendant Spartan's truck, proceeding west on the right side of Lansing's four-lane paved Saginaw street, veered to the left side of the street, where it collided with the station wagon. The collision was caused, according to Mr. Moyses' complaint, by negligence of Spartan and its driver alleged as follows:
"a. That said vehicle was operated upon the highways of this state at a speed in excess of the posted
"b. That said motor vehicle was operated then and there recklessly and carelessly and heedlessly, in willful and wanton disregard of the safety of others, and without caution and due circumspection contrary to § 9.2326 of the Michigan Statutes Annotated,
"c. That in violation of the common-law rules of the road, said motor vehicle was being operated at the time and place with defective tires, which tires, among other causes, caused said motor vehicle to go across the center line and into the path of the vehicle of the plaintiff.
"d. That contrary to the provisions of § 9.2405 of Michigan Statutes Annotated,
"e. That said motor vehicle of the defendant was operated in a defective mechanical condition causing the front axle of said vehicle to break loose and to cause the motor vehicle of the defendant to come across the highway and into the vehicle of the plaintiff, all contrary to the common-law rules of the road."
Primary defendant Spartan's first third-party motion, designed as it was to implead present third-party defendants Russ Zuker Tire Service, Inc., and Michelin Tire Corporation was granted. Then, among other pleadings, depositions, interrogatories, motions, etc., came these additionally potent paralyzers of otherwise promptly administrable justice.
The filing of third-party defendant Russ Zuker's answer to complaint and its cross-claim against third-party defendant Michelin Tire Corporation; the filing of an amended third-party complaint by primary defendant Spartan against third-party defendants Russ Zuker and Michelin Tire Corporation; the filing of third-party defendant Michelin Tire Corporation's answer to primary defendant Spartan's amended third-party complaint against it and, finally, the filing by primary defendant Spartan of a motion for leave to implead additional third-party defendants identified as the Michelin Corporation (of New York) and a French corporation identified as Manufacture Francaise Des Pneumatiques
The last complaint is the one we are called upon to examine for service under Rule 204. Therein primary defendant Spartan alleges that it bought from third-party defendant Russ Zuker, "one month prior to the accident complained of", a Michelin tire which was then installed on the left front wheel of its dump truck; that the tire was manufactured defectively by the French corporation and distributed by the Michelin Corporation to present third-party defendant Michelin Tire Corporation, and from the latter to present third-party defendant Russ Zuker. This last third-party complaint concludes:
"Wherefore, defendant and third-party plaintiff prays for a judgment against third-party defendants for any and all amounts which plaintiff Gorman E. Moyses may be found entitled to recover against defendant and third-party plaintiff, or in the alternative, a judgment for a pro-rata contribution by third-party defendants to any judgment which plaintiff may recover against this defendant and third-party plaintiff."
Primary defendant Spartan's motion for such additional impleader came to submission and denial in June of 1968. No formal opinion was filed by Judge Warren in circuit. His order denying leave recites and concludes:
"This matter having come before the court on motion of Spartan Asphalt Paving Company, defendant, for leave, as third-party plaintiff, to serve a summons and complaint upon Michelin Corporation (a New York corporation) and Manufacture Francaise Des Pneumatiques Michelin (a French corporation) — said motion being based upon GCR
"Ordered, that the motion to add the parties named be, and the same is, denied."
Application of primary defendant Spartan to the Court of Appeals, for leave to review Judge Warren's order, resulted in an order of denial "for lack of merit in the grounds presented". Judge LEVIN dissented. His one-sentence dissent called attention (without comment) to Professor Hawkins' recent "Practice Commentary" (33 MCLA § 600.2925, p 780) and advocated grant of the requested leave to implead, "the trial judge not having refused to grant leave on the ground of inexcusable delay and such delay not appearing in the record". June 4, 1969, we granted primary defendant Spartan's application for leave to appeal.
First: The Question of Judicial Discretion.
Involved here is an upthrust question of construction and application of the second sentence appearing in § 2925 (CLS 1961, § 600.2925; Stat Ann 1962 Rev § 27A.2925):
"Joint tortfeasors who are summoned in as third party defendants pursuant to court rule may likewise be liable for contribution."
By brief and oral argument primary defendant and appellant Spartan insists that it has an absolute
In the first place the question of grant or denial of a motion to implead, under Rule 204.1, depends not upon substance but upon judicial discretion; a discretion certainly not abused here. In the second place the trial judge's determination that primary defendant Spartan's motion to implead should be denied was right for two good reasons, that is to say, the motion and proffered third-party complaint fail to show or plead sufficiently:
(a) That the two newly identified corporations are or could be, with primary defendant Spartan, joint tortfeasors within RJA § 2925 (CLS 1961, § 600.2925), and
(b) that third-party process issued by the Ingham county circuit court, when and if served upon the French corporation, would confer jurisdiction on that court to proceed as against that corporation.
We have said that Spartan was not possessed of a right, under § 2925 and Rule 204, to implead the additionally proposed third-party defendants. By no means, however, does that conclusion (and the denial below of its present motion) eliminate Spartan's inchoate right, if any, to contribution or indemnity from the Michelin Corporation or the French corporation, or both. The reason lies in the wholly discretionary power of the trial judge to grant or deny impleader under Rule 204; a power that was dinned into the minds of Michigan judges and lawyers, the Justices of this Court included, when the General Court Rules of 1963 were conferentially discussed during the year which preceded
Judge Gilmore of the third circuit, who with the writer and others took an active part in the 1962 meetings, carefully maintained and then published an accurate record of the presentations that were made uniformly during those meetings. Here is the essence of that record, pertinent to this posed question of absolute right to implead under Rule 204 (1 Gilmore, Michigan Civil Procedure Before Trial, pp 332, 333):
"Impleader is by motion ex parte before service of the answer, or by motion with notice to plaintiff after the service of an answer. The granting of the motion rests within the sound discretion of the court, and there is no absolute right to join a third party defendant. Generally courts will be liberal in allowing the joinder of third party defendants, but it should be avoided where there might be prejudice to either party because of the complexity of the case. It should be remembered, however, that if there is objection on this basis, the court can always order separate trials of separate issues under GCR 1963, 505.2.
"Joiner [61 Negligence Law Section Bulletin, 8, 12] says:
"In acting upon a motion made under the rule the judge will weigh the advantages of having the third party in the case against the following:
"1. The probability of delay, United States v. Jollimore (1949), 2 FRD 148
"2. Complications of the trial, McPherrin v. Hartford Fire Ins. Co. (1940), 1 FRD 88
"4. The similarity of evidence, Jones v. Waterman SS Corporation (CA 3, 1946), 155 F.2d 992
"5. The possibility of prejudice to the plaintiff, FDIC v. The National Surety Corp. (1950), 13 FRD 201; Casey v. Calmar Steamship Corporation, supra.
"6. Possibility of prejudice to third-party defendant, American Fidelity and Casualty Company v. Greyhound Corporation (CA 5, 1956), 232 F.2d 89."
There can be no intellectually honest question about this point that impleader under Rule 204 is wholly discretionary, and accordingly that an order denying impleader does not destroy whatever substantive right to contribution the primary defendant possessed prior to such denial. In such event he may pay up if damnified and then sue within the allowed six-month period under (4) of § 2925. See the "Authors' Comments" headed "Discretion of Court" (1 Honigman & Hawkins, Michigan Court Rules Annotated (2d ed), p 507),
A substantive right is like the presence or absence of pregnancy. It exists or does not exist, and cannot be made to depend on any good or dismaying turn of judicial discretion. Hence one's right of appeal to judicial discretion differs from his substantive rights in that the former is simply the
"The term discretion implies the absence of a hard-and-fast rule. The establishment of a clearly defined rule of action would be the end of discretion, and yet discretion should not be a word for arbitrary will or inconsiderate action. `Discretion means a decision of what is just and proper in the circumstances.' Bouvier's Law Dict. `Discretion means the liberty or power of acting without other control than one's own judgment.' Webster's Dict."
This Court said unanimously, in Spalding v. Spalding (1959), 355 Mich. 382, 384:
"In view of the frequency with which cases are reaching this Court assailing the exercise of a trial court's discretion as an abuse thereof, we deem it pertinent to make certain observations with respect thereto in the interests of saving expense to the litigants and avoiding delay in reaching final adjudication on the merits. Where, as here, the exercise of discretion turns upon a factual determination made by the trier of the facts, an abuse of discretion involves far more than a difference in judicial opinion
See Spalding, quoted and applied by Division I, in People v. Wolschon (1966), 2 Mich.App. 186, 188.
To conclude the question now in discussion: We read for proper application the second sentence of (1) of § 2925 as it was read and understood by this Court in 1961, and then by the profession during the meetings of 1962, that is to say:
"Joint tortfeasors who, upon invocation of the court's discretionary power pursuant to court rule, are summoned in as third party defendants may likewise be liable for contribution."
Second: Are the Primary Defendant and the Proposed Third-Party Defendants Joint Tortfeasors Within § 2925?
Section 2925 (CLS 1961, § 600.2925) is a near-verbatim redraft of PA 1941, No 303 (CL 1948, § 691.561 et seq.). It turned out in the interval that the act of 1941 was considerably short of its supposedly purposeful aim; that of providing the substantive right of contribution between or among jointly liable or severally liable but not wilful tortfeasors. Section 2925 is correspondingly deficient, it having provided the desired right only to the extent of contribution between or among litigant "joint tortfeasors", and that only upon the nod of the plaintiff or of the possibly whimsical circuit judge. Now let us compare these enactments of 1941 and 1961 to ascertain whether, and if so to what extent, the latter improved substantively upon the former.
By § 1 thereof the act of 1941 provided the substantive right of contribution in favor of any joint tortfeasor who, having been sued by the plaintiff
By § 2 the act of 1941 provided the substantive right of the plaintiff in such a case "to compound, settle with, and discharge * * * any and everyone or more of said joint tortfeasors," without impairing that plaintiff's right to pursue the remaining joint tortfeasors. Section 2925 (2) provides the same substantive right in the same identical words. (Note again the same phrase, "Joint tortfeasors".)
By § 3 the act of 1941 provided, in favor of an "insurer of a person jointly or severally liable with one or more other persons upon a judgment for the same private wrong, which insurer has * * * discharged the common liability by payment, or has paid more * * *", the same "right to contribution which such insured would have acquired by such payment". Section 2925 (3) provides the same substantive right in the same identical words.
Referring to both enactments (of 1941 and 1961), reflect upon the awarded substantive right to contribution in favor of the insurer where its insured has been adjudged "jointly or severally liable."
It is not hard to discern that unresolved and wholly unnecessary difficulties remain, in the application of § 2925 in conjunction with Rule 204. And this says nothing of a protrudent constitutional question arising from the provision which distinctively favors (with the substantive right of contribution) the insurers of persons "jointly or severally liable" who pay more than the just pro rata share of their insurers. The question arises, § 2925 having failed to provide in corresponding or equivalent language the same substantive right in favor of a "person" not insured, or, say, a "person" who suffers the misfortune of insolvency of his insurer when the time for payment arrives. These abominations we have decided to correct, not by disturbing § 2925 or by resolution of the stated constitutional question, but simply by overruling the remnants of Michigan's common-law rule which — loosely — has barred "wrongdoers" from the equitable right of contribution where, by the standards of equity, that right exists generally.
The legal phrase "joint tortfeasor" was fully understood in Michigan when the act of 1941 was conceived, and again when the Revised Judicature Act was enacted two decades later. In general it was, and still is, that where two (or more) persons owe to another the same duty and by their common neglect of that duty such other is injured, the two (or more) have committed a joint tort and therefore are joint tortfeasors. The Legislature both in 1941 and 1961 presumably employed the phrase according to such specific meaning. Why else would
Compare § 2925 with both the 1939 and 1955 drafts of the Uniform Contribution Among Tortfeasors Act (9 ULA pp 233 et seq.). Both drafts definitely provide the substantive right of contribution for all who are jointly or severally liable for the same injury.
The 1955 draft proceeds pertinently (9 ULA 1967 Cum Supp p 127):
"§ 1. [Right to Contribution]. — (a) Except as otherwise provided in this act, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.
"(b) The right of contribution exists only in favor of a tortfeasor who has paid more than his pro rata share of the common liability, and his total recovery is limited to the amount paid by him in excess of his pro rata share. No tortfeasor is compelled to make contribution beyond his own pro rata share of the entire liability.
"(c) There is no right of contribution in favor of any tortfeasor who has intentionally [wilfully or wantonly] caused or contributed to the injury or wrongful death."
Of the 1955 draft the Commissioners' Prefatory Note advises (9 ULA 1967 Cum Supp p 125):
"This uniform act establishes the right of a person liable for damages for an unintentional wrong to compel others, who are liable with him for the same damages, to share in discharging the common liability."
When one speaks specifically of joint tortfeasors, he does not refer (a) to wrongdoers the liabilities of whom arise out of variant legal positions, the concurrently applied but legally different derelictions of whom make them severally responsible to the plaintiff in damages, or (b) to the acts or omissions of several who act independently rather than in concert, or (c) to those who may — under present rules of court — be joined as defendants, by the plaintiff (see GCR 1963, 206), and held responsible to him for damages sustained on account of their causally cooperating but non-joint acts or omissions, say
Here the liability if any of the newly proposed third-party defendants (Michelin Corporation and French corporation), as alleged by third-party plaintiff Spartan, is several and not joint, that is to say, primary defendant Spartan, the Michelin Corporation and the French corporation, are not joint tortfeasors in fact or in contemplation of § 2925.
Third: The Availability to the Primary Defendant of the Right to "Vouch In."
For the first time since the GCR became effective in 1963, these cases have presented an additional reason for pronouncing the discretionary denial, of a Rule 204 motion for leave to implead, as not adjudicatory of any theretofore existent substantive right. Authors Honigman and Hawkins point this up at p 510 of their parent volume aforesaid:
"5. Vouching In
"As mentioned above, the more traditional process of vouching in a third party against whom defendant could have an action is not a satisfactory substitute for modern third-party practice. But it was not affected by the adoption of Rule 204 and may still have its place. Tactical considerations will govern the choice of whether to vouch in or implead the third party in a particular case.
"In circumstances where the third party is outside the jurisdictional reach of Michigan courts, the process
We agree fully with the italicized portion of the foregoing comment, the emphasis being ours.
In this case the real target of primary defendant Spartan's third-party complaint, the French corporation that is, has not been shown by requisite factual pleading to be within the admittedly long arm reach of § 715 (CLS 1961, § 600.715; Stat Ann 1962 Rev § 27A.715).
Turning directly now to the presently scrutinized third-party complaint: all here agree that Spartan's alternative "Negligence Count," unlike its "Warranty
Our ruling is that primary defendant Spartan was never possessed of a substantive right to implead as now claimed, under § 2925 and Rule 204.
Stimulated by the national advancement of principles set forth in the Uniform Contribution Among Tortfeasors Act, supra, the tendency of other courts to provide by judicial action the right of contribution on behalf of all but intentional wrongdoers, and the compelling admonitions of modern writers like Prosser, we have decided to overrule what is left of Michigan's common-law bar of contribution between or among "wrongdoers," wilful or intentional wrongdoers excepted. Such overrulement will leave the
Prosser, mentioned above, says (Prosser on Torts [2d ed], § 46, pp 248, 249):
"There is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiff's whim or spite, or his collusion with the other wrongdoer, while the latter goes scot free. Half a century of vigorous denunciation has had its effect in the passage of statutes in some twenty states, which to a greater or less extent permit contribution among tortfeasors. Some of these acts are limited to contribution between defendants against whom a joint judgment has been rendered. Others are quite broad and general in scope, declaring the principle of contribution and leaving its administration to the courts. Still others provide methods by which the tortfeasor from whom contribution is sought may be joined as a defendant, and his liability determined in the original action. The drafting problem has not been free from difficulty.
"It seems quite clear that the rule denying contribution in favor of negligent tortfeasors is in full retreat, and that in due course of time the pressure of opinion will compel its abolition. As to wilful
To the same point is the Commissioners' Prefatory Note, accompanying initiation of the 1939 draft of the Uniform Contribution Among Tortfeasors Act (9 ULA at p 231):
"As an original proposition, all might agree that courts should not lend their aid to rascals in adjusting differences among them. But all tortfeasors are not rascals, in spite of the literal translation of the term as wrongdoers. Most joint and several tort liability results from inadvertently caused damage, although it is almost impossible to draw a practical line between torts of inadvertence and others. It is, then, somewhat ironic to note that at common law contribution is denied among all tortfeasors and is allowed as a matter of course to one who has deliberately chosen to violate a contractual obligation undertaken with others."
Our decision to overrule will apply retroactively so as to include such claims for contribution as may have arisen no more than six months prior to the date of release of this opinion, by the fact of payment by the claimant of more than his pro rata share. That will fit the lifting of the common-law bar to the six-month limitation provided when (4) of § 2925 is applicable.
Affirmed. On remand the circuit judge will order promptly tried, either separately or as one, the issues pleaded by the plaintiffs against the primary defendant and those pleaded by the primary defendant against the present third-party defendants. See GCR 1963, 204.1(4) and 505.2.
All circuit judges will proceed correspondingly in actions for property damage, personal injury, wrongful
Appellees will have costs of this appeal.
T.E. BRENNAN, C.J., and DETHMERS, KELLY, and T.G. KAVANAGH, JJ., concurred with BLACK, J.
T.M. KAVANAGH and ADAMS, JJ., concurred in result.
"specif: the latitude of decision within which a court or judge decides questions arising in a particular case not expressly controlled by fixed rules of law according to the circumstances and according to the judgment of the court or judge (as in suspension of a sentence or the amount of a fine)."