Brunyer v. Salt Lake County

551 P.2d 521, 1976 Utah LEXIS 873

• Court: Utah Supreme Court
• Decided: June 16, 1976
• Docket: 14267
• Status: Published

Opinions

TUCKETT, Justice:

This is an appeal from an order of the District Court of Salt Lake County dismissing the third-party complaint filed by Salt Lake County and Daniel Neil Ipson against the third-party defendant. We are not here concerned with the issues raised by the plaintiff against the defendants in the main action.

On April 14, 1973, the plaintiff, Ralph Brunyer, and his wife were riding as passengers in an automobile being operated by Emil Zigich, third-party defendant. While Zigich was driving the Brunyers to their residence his automobile was involved in a collision with an automobile being operated by Daniél Neil Ipson, who was a deputy sheriff of Salt Lake County. The plaintiff, Ralph Brunyer, was injured in the accident and his wife sustained fatal injuries. The plaintiff is seeking to recover damages for his own injuries and for the wrongful death of his wife. Salt Lake County and Ipson filed a third-party complaint against Zigich claiming that he was operating his vehicle while he was under the influence of intoxicating liquor, and that he was guilty of willful misconduct.

The third-party complaint is based upon the provisions of Section 78-27-39, U.C.A. 1953, amended, which reads as follows:

The right of contribution shall exist among joint tort-feasors, but a joint tort-feasor shall not be entitled to a money judgment for contribution until he has, by payment, discharged the common liability or more than his prorata share thereof.

The effective date of the statute was May 8, 1973. The trial court in dismissing the third-party complaint was of the opinion that the act was not retroactive, and further, that the third-party complaint was premature in that the third-party plaintiffs’ claim for contribution did not in any event arise until the third-party plaintiffs had paid and discharged more than their prora-ta share of the common liability. Prior to the adoption of the statute there was no right to contribution between joint or concurring tort-feasors in this State.¹ Nevertheless, the third-party plaintiffs claim they are entitled to maintain the action even though the accident out of which the proceedings arose occurred prior to enactment of the statute, and prior to any contribution made by them on the theory that the action is only remedial and they should be permitted to pursue it in the event that sometime in the future they are called upon to respond in damages to the plaintiff.

The statute above mentioned does in fact create a right of action where none existed prior to its adoption. A right of action should be distinguished from remedies. One precedes and gives rise to the other, but they are separate and distinct.² The contribution statute established a primary right and duty which was not in existence at the time the injuries in this case arose, and the statute not being retroactive by its terms did not create a right on behalf of the third-party plaintiffs.³ We conclude that the order of the court below dismissing the third-party complaint was correct. Our decision effectively disposes of the appeal and we do not discuss other issues which counsel urge upon us.

The decision of the court below is affirmed. Respondent is entitled to costs.

HENRIOD, C. J., and MAUGHAN, J., concur.

1 . Hardman v. Matthews, 1 Utah 2d 110, 262 P.2d 748.

2 . East Side Mill & L. Co. v. Southeast Portland L. Co., 155 Or. 367, 64 P.2d 625.

3 . Sec. 68-3-3, U.O.A.1953; Shupe v. Wasatch Electric Co., 546 P.2d 896 (Utah 1976) ; In re Ingrahams Estate, 106 Utah 337, 148 P.2d 340; Petty v. Clark, 113 Utah 205, 192 P.2d 589; Mercur Gold M. & M. Co. v. Spry, 16 Utah 222, 52 P. 382.