FOSHEIM, Circuit Judge.
On July 28, 1968, the families of a Little League Baseball team were engaged in an outing at Sheridan Lake in Pennington County. The recreation included water-skiing. One of the boats involved was a 1968-210 h.p. inboard-outboard manufactured by the defendant Outboard Marine Corp., operated by the defendant Donald Bayman and owned by his employer. Bayman had operated the boat at least twice before that date. He also had been driving it for some time the day of the accident. It used an automatic, push-button, electric transmission control which was mounted in connection with a throttle control lever on the right side of the boat. The shift positions were "Forward", "Neutral" and "Reverse". The boat came to a stop some distance from shore in deep water. William J. Degen, one of the ball players, then fourteen years of age, swam out to the boat to water-ski. He positioned himself 14' to 45' directly behind the boat. It was then discovered that this boat had no towrope, and Bayman prepared to move out.
Bayman did not recall whether the boat was in gear when he started the engine or if he inadvertently shifted into reverse. He did not know the boat was designed to start in gear as well as neutral. There was no evidence of any malfunction.
During the summer of 1966, while the defendant Outboard Marine was finalizing the engineering and design of its 1968 models, it concluded the design unsafe which permitted this powerful motor to be started while the transmission was in gear and the throttle open. This was about one year before the 1968 model boats were put into production. Notwithstanding this recognition, Outboard Marine did not change the design and proceeded to manufacture and market the 1968 models. Minor changes would have assured the motor starting only while in neutral gear. The operator's manual was printed after the company had concluded the design was not advisable for safety reasons. However, the manual gave no warning of this hazard. Likewise, no warnings to dealers or call-backs were issued. "Caution" plates or decals were affixed at conspicuous places as to other hazards, but none concerning the danger of starting the boat in gear, particularly with the throttle open.
Over the objection of defendant Outboard Marine, the trial court submitted the issue of indemnity to the jury. The jury returned a substantial verdict in favor of plaintiff and against both defendants. They also found the defendant Bayman was entitled to be indemnified by the defendant Outboard for all damages. Outboard claims Bayman was not entitled to indemnity as a matter of law and that its motion to dismiss Bayman's claim therefore should have been granted.
Contribution and indemnity are remedies to secure restitution. Although similar in nature and having a common basis in equitable principles, they differ in the kind and measure of relief provided. Contribution requires the parties to share the liability or burden, whereas indemnity requires one party to reimburse the other entirely.
In Millard v. Baker, 76 S.D. 529, 81 N.W.2d 892, Judge Rudolph writing for this Court said:
And in 42 C.J.S. Indemnity § 21, p. 598, it is stated,
Thus, a joint tortfeasor is without personal fault when he has not participated in the commission of the tort and his liability arises by operation of law. Pelkey v. State Sales, Inc., D.C.Mich., 210 F.Supp. 924.
As applied to product liability, see Annotation 28 A.L.R.3d 946.
Conversely, before a joint tortfeasor can shift one hundred percent of the recovery upon another joint tortfeasor, he must show a proportionate absence of contributing negligence on his part.
It is generally held that where joint tortfeasors are in pari delicto—that is, where each is chargeable with active or affirmative negligence contributing to the injury, neither is entitled to indemnity from the other although contribution may be available. 41 Am.Jur.2d, Indemnity, § 21.
An act of omission as well as one of commission on the part of a joint tortfeasor contributing to the injury may constitute active negligence precluding his recovery of indemnity where he is under an affirmative duty to act. Bernstein v. ElMar Painting & Decorating Co., 13 N.Y.2d 1053, 245 N.Y.S.2d 772, 195 N.E.2d 456, and 41 Am.Jur.2d, Indemnity, § 21.
If a person seeking indemnity personally participates in an affirmative act of negligence, or is physically connected with an act of omission by knowledge or acquiescence in it on his part, or fails to perform some duty in connection with the omission which he has undertaken, he is deprived of the right of indemnity. Cahill Brothers, Inc. v. Clementina Company, 208 Cal.App.2d 367, 25 Cal.Rptr. 301; Pearson Ford Company v. Ford Motor Company, 273 Cal.App.2d 269, 78 Cal.Rptr. 279.
In South Austin Drive-In Theatre v. Thomison, Tex.Civ.App., 421 S.W.2d 933, 28 A.L.R.3d 911, the leg of a six-year-old boy was severed by the rotary blade of a riding power mower. An employee of the theatre was operating the mower when the injury occurred. The operator was found negligent for failing to exercise due care in controlling the power mower, knowing that another person, in this instance a small child, was present and in the immediate vicinity of the machine. He stopped the mower and without looking backward
Viewed most favorably, Bayman's conduct consisted of not less than acts of omission in his duty to plaintiff which contributed to the proximate cause of the injury. His negligence was more than passive or vicarious. Being in pari delicto, he was in no position to shift the entire liability to Outboard Marine. Indemnity was not an issue and the trial court should have dismissed Bayman's claim therefor.
Having reached this conclusion, the record could ordinarily be remanded with instructions to amend the judgment accordingly. However, further assignments require our consideration.
At a pretrial conference, the court directed that no mention be made during the trial of any settlement that might be effected with any party. During the trial and before arguments to the jury, plaintiff and the defendant Bayman, with the knowledge of the court, entered into a settlement. The agreement provided for the release of Bayman upon payment of $65,000. Under the release and instructions, he could recover his payment by indemnification from Outboard. To accomplish this, it was necessary to persuade the jury that plaintiff was entitled to recover at least $65,000 damages and that Outboard was primarily liable. Plaintiff and Bayman thus shared a mutual interest adverse to Outboard. This, of course, opened attractive opportunities to cross-examine friendly witnesses.
Whether evidence of a release or covenant not to sue should be admitted to the jury and if admitted whether the allowance of credit should be made by the court or jury is unsettled.
The Uniform Contribution Among Tortfeasors Act is intended to encourage settlements without prejudice to the parties. When a release or covenant is received in evidence, it can raise collateral issues jeopardizing plaintiff. Cartmel v. Williams, 207 Pa.Super. 144, 215 A.2d 282. If it shows a nominal or "nuisance" settlement with one tortfeasor, it can be used by a joint tortfeasor to downgrade a plaintiff's claim. If it reveals a substantial payment, the nonsettling tortfeasors would likely urge it as proof that the releasee was the party responsible for the injury, had paid the damages, and that they should be exculpated. DeLude v. Rimek, 351 Ill.App. 466, 115 N.E.2d 561. This would tend to discourage settlements.
In Bender v. Wallace-Murray Company, 8 Cir., 432 F.2d 50, the trial court instructed the jury that the issue of liability before them concerned only the defendant Wallace-Murray since the plaintiff had settled with the other defendants during the trial
We can visualize no circumstances where the amount involved in a release or covenant need be disclosed to the jury.
Counsel for plaintiff argued that Outboard was about 99% responsible for the accident.
Armed with the court's protective order, a release from plaintiff and an instruction allowing indemnity, counsel for Bayman addressed the jury as follows:
We need not comment on the impropriety of argument suggesting consideration of damages other than on the issues in evidence, Cooper v. Holscher, 60 S.D. 83, 243 N.W. 739; Roth v. Jelden, 80 S.D. 40, 118 N.W.2d 20.
Over objection, Bayman's counsel continued:
Not knowing the motive for the evaporation of adversary vigor between plaintiff and Bayman, this benevolent candor coming from a joint tortfeasor could only appear to the jury as a shattering admission.
The protective order was a proper exercise of discretion. However, the responsibility to assure a fair trial is continuous. The court should not have allowed it to be used as a collusive advantage. When that appeared, a limited rescission was necessary to let the adversary process put the issues in perspective.
We have reviewed the remaining assignments of error and conclude they are either without significant merit or are disposed of by the result we have reached.
HANSON, P.J., and WINANS and WOLLMAN, JJ., concur.
BIEGELMEIER, J., dissents.
FOSHEIM, Circuit Judge, sitting for DOYLE, J., disqualified.
BIEGELMEIER, Judge (dissenting).
When the proposed opinion was circulated my efforts resulted in a research paper
I. As I read the opinion, the court states one of the principles of law where indemnity is allowed—that of the active-passive negligence situation, referred to in 41 Am. Jur.2d, Indemnity, §§ 20 and 21—and then applies it to this appeal without regard to the other and additional situations where indemnity is allowed. These other and additional situations are also stated in the same text and sections (41 Am.Jur.2d, Indemnity, §§ 20 and 21) and, indeed, even in the Minnesota Hendrickson and the Wisconsin Jacobs opinions all cited and relied on in the majority opinion. I believe indemnity can be sustained by principles there stated and hereafter quoted, and that indemnity can be allowed if a party comes within any one of the situations stated.
There is no dispute that some of the authorities quoted are in accord with Millard v. Baker, 76 S.D. 529, 81 N.W.2d 892, but those issues are not involved in this appeal. What is involved is whether Bayman should have discovered the dangerous defect O.M.C. had built into the starting mechanism that permitted the motor to be started while the propeller was engaged in forward or reverse. That was a question for the jury and is governed by the following statement in 41 Am.Jur.2d, Indemnity, § 20, partially quoted by the court:
Restatement of the Law, Restitution, § 93, similarly declares:
The Minnesota and Wisconsin opinions, supra, indicate indemnity and contribution have developed there by court decisions as equitable doctrines. Yet, the Minnesota Hendrickson opinion states that of several situations where indemnity is allowed, one is when the indemnitee has incurred liability.
Even assuming the active-passive situation is here presented, Pearson Ford Company v. Ford Motor Company, 273 Cal.App.2d 269, 78 Cal.Rptr. 279, cited in the majority opinion, declares the guide for which I contend. In that case there was a defect in the brake, caused by omitting to put in a pin, which resulted in damage to plaintiff. She recovered a $150,000 judgment against both the dealer and the manufacturer, and the dealer was allowed indemnity against the manufacturer. While the court reversed because of an error in instructions, it said that the law of active-passive negligence applied, and, if active, it would bar recovery of indemnity of the
The action was sent back for the trial on that issue and is authority for submitting that question in this case at bar to a jury, its verdict being final. Accord: Otis Elevator Co. v. Cameron, Tex.Civ.App., 205 S.W. 852, where the court held Otis, the manufacturer of a defective elevator, "was the original and active perpetrator of the wrong for which R. L. Cameron was held responsible * * * and that the negligence of * * * Cameron * * * was only passive."
In VanderVeer v. Tyrrell, 27 A.D.2d 958, 278 N.Y.S.2d 916, cited in the opinion, appears this statement of an operator's (Bayman's) duty:
II. While holding the protective order was proper, the opinion quotes part of the argument of counsel for defendant Bayman. Granting this statement bordered on impropriety, it was not of the degree disapproved in Cooper v. Holscher, 60 S.D. 83, 243 N.W. 739, where the court over objection commented the argument was proper and told counsel to "`Proceed'". The jurors were not misled by the tactics of Bayman's counsel; they knew Bayman and O.M.C. were opposing parties and adversaries because Bayman was asking for and the jury awarded a verdict against O. M.C. To set aside the verdict of plaintiff by reason of an argument of a co-defendant does not seem justified. In affirming an order denying a new trial on a claim of passion and prejudice, the court in Roth v. Jelden, 80 S.D. 40, 118 N.W.2d 20, said "the trial court is vested with a judicial discretion".
III. Even under the court's opinion that the verdict and judgment of Bayman against O. M. C. cannot be sustained, there is no reason the separate verdict and judgment of plaintiff against both Bayman and O. M. C. should fall by the wayside in this well-tried action involving difficult and intricate issues. The appropriate disposition would be to reverse only the Bayman judgment for indemnity against O. M. C. and remand the action for trial of the issue of contribution between them under SDCL 15-8. I do not understand the opinion to affect in any way the right to contribution between defendants.