Russell L. Dawson v. Contractors Transport Corp. Magazine Bros. Construction Corp.

467 F.2d 727

• Court: Court of Appeals for the D.C. Circuit
• Decided: November 13, 1972
• Docket: 24533
• Status: Published

Opinions

McGOWAN, Circuit Judge:

The only issue before us is whether a cross-claiming defendant in a negligence action was entitled as a matter of constitutional right to a jury trial. The question arises in the special context of a plaintiff who has (1) been injured in the course of his employment, (2) re-eeived workmen’s compensation as the exclusive remedy available to him against his employer, and (3) sued two other persons in tort. The cross-claim is by one of such latter defendants, and it alleges that the employer’s negligence was responsible for the injury.

For the reasons hereinafter appearing, we find that the trial judge was empowered to hear and resolve the cross-complaint without the intervention of a jury; and we affirm the judgment of the District Court.

I

Appellee Dawson was injured on December 15, 1964 in the course of his employment at the Watergate Apartments construction site. The general contractor of the project, Magazine Brothers Construction Corporation, subcontracted the installation of the plumbing and ventilation systems to Dawson’s employer, appellee William H. Singleton Company. Appellant Contractors Transport Corporation agreed with Singleton to deliver and “rig into place when directed” three large refrigeration machines. During the delivery of these machines a winch line snapped, causing injury to Dawson, who was assisting in the unloading.

Dawson subsequently applied for and received compensation from Singleton under the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § 901 et seq. (1970), made applicable to the District of Columbia by 36 D.C.Code § 501. The Act is, by its terms, the exclusive remedy against employers available to employees injured in the course of their employment, and thus operates as a bar to any negligence suit by an .employee against his employer. 33 U.S.C. § 905 (1970). Thereafter, Dawson and his wife filed suit in the District Court against Magazine and Contractors for their alleged negligence in causing the injury; and Magazine filed a third-party complaint against Singleton for indemnification, under a contract between them, against any judgment suffered by Magazine. Contractors then filed a cross-claim against Singleton which, by reference to our decision in Murray v. United States, 132 U.S.App.D.C. 91, 405 F.2d 1361 (1968), sought a credit of 50 per cent against any judgment that might be rendered against Contractors.

The so-called “Murray credit” is an extension of the equitable doctrine of contribution in the context of workmen’s compensation claims. Under the principle of contribution, a tortfeasor against whom a judgment is rendered is entitled to recover proportional shares of the judgment from other joint tortfeasors whose negligence contributed to the injury and who are also liable to the plaintiff.¹ Since employers covered by workmen’s compensation statutes are not liable in tort to their injured employees, other tortfeasors are not entitled to contribution from negligent employers, and thus, before Murray, bore the entire burden of the tort damages.²

To mitigate the harshness of this result, we held in Murray that a person against whom the employee was awarded damages in a tort action could reduce the judgment by 50 per cent if he could show that the employer’s negligence contributed to the injury.³ Thus the basis of Contractors’ cross-claim against Singleton was the allegation that Singleton’s negligence contributed to Dawson’s injury.

Before the trial, Dawson moved for a jury trial in his action against Magazine and Contractors, as did Magazine in respect of its third-party complaint against Singleton. Although Contractors made no such request with relation to its cross-claim against Singleton, it argues that the trial transcript shows that the court and parties agreed at the start of the trial that the issues of fact on the cross-claim would be submitted to the jury. Alternatively, Contractors asserts that it was, in any event, entitled to rely on the motion of its co-defendant Magazine.⁴

At the trial, Contractors attempted to establish its own freedom from negligence by asserting and showing that the sole cause of the injury was Singleton’s negligence. However, the jury brought in a general verdict which, although finding Magazine not negligent, held Contractors liable for $100,000 in damages. The trial judge then addressed himself to Contractors’ cross-claim, finding that Singleton was not negligent on the evidence of record and, accordingly, denying the cross-claim. Contractors now asserts that the negligence issue underlying the cross-claim should have been submitted to the jury, and that the action of the judge in deciding it himself denied Contractors its Seventh Amendment right to a jury trial.

II

The Constitution in terms preserves the right to trial by jury in “suits at common law, where the value in controversy shall exceed twenty dollars.” It is well established, however, that actions which are not “suits at common law” but which lie strictly in equity do not give rise to a right to trial by jury and may be tried by the court alone. Issues of fact relating to an equitable claim may be submitted to a jury, however, if the judge in his discretion chooses to do so.⁵ A threshold question here, therefore, is whether the judge undertook at the outset to submit the issues of fact on the cross-claim to the jury.

While Contractors insists that there was such an understanding between the court and the parties, the record indicates that there was no meeting of the minds on the question. It is apparent that at least the court and counsel for Dawson, Singleton, and Magazine understood that the issues of law and fact on the cross-claim would be decided by the judge alone after the jury’s verdict in the main action.⁶ Although the statement made by counsel for Contractors in this colloquy is not completely clear, it is significant that there was no objection voiced to the course which the court clearly said it planned to follow. Although the record lacks the clarity requisite for the finding of a waiver of the constitutional rights now asserted by Contractors, it does at least indicate that there was no agreement reached between the parties and the court which estops any one of them from pressing his present position with respect to the procedure appropriately to be followed.

Thus, the judge erred in resolving the cross-claim himself only if Contractors had a constitutionally protected right to trial by jury. The answer to that question requires an analysis of the nature of a claim for a Murray credit, and examination of the leading decisions of the Supreme Court in this area.

Ill

The Supreme Court has noted the difficulty of “defin(ing) with precision the line between actions at law dealing with legal rights and suits in equity dealing with equitable matters,” Ross v. Bernhard, 396 U.S. 531, 533, 90 S.Ct. 733, 735, 24 L.Ed.2d 729 (1970), and has suggested that

[T]he “legal” nature of an issue is determined by considering, first, the pre-merger [of law and equity in the Federal Rules in 1938] custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply. Id. at 538, n. 10, 90 S.Ct. at 738.

Despite its recent origin, we have no doubt that a Murray credit claim is equitable in character. Indeed, it has a doubly equitable origin. First, the doctrine of contribution itself was created by courts of equity to dissipate the harshness of the common law rule that rendered liable for the entire damages a tortfeasor against whom a judgment had been obtained, despite the existence of other tortfeasors not parties to the suit. As this court said in Jones v. Schramm, 141 U.S.App.D.C. 169, 170, 171, 436 F.2d 899, 900-901 (1970);

Contribution is an “equitable doctrine based on principle of justice,” — which is not dependent on contract, joint action, or original relationship of the parties. . . . The doctrine of contribution originated in the courts of equity, and it was announced in this jurisdiction in a leading opinion by Judge Groner. . . .We may assume, therefore, as it has apparently been generally assumed, that when contribution is sought against a defendant who was not sued by plaintiff, as is permitted by our decisions, the claim sounds in equity and the court acts as finder of the fact to determine whether the second tortfeasor from whom contribution is sought was negligent, and therefore liable to the victim. (Emphasis supplied).⁷

Second, the Murray credit was adopted to prevent inequity in eases where workmen’s compensation bars recovery in contribution. Furthermore, unlike actions at law traditionally, a Murray credit claim is not an action to recover money damages from the object of the claim, but rather for a declaration of entitlement to a credit against the claimant’s liability in damages to a third party.

The Supreme Court’s decision in Ross v. Bernhard, supra, does not affect the conclusion that a Murray credit claim is equitable, and thus does not in itself give rise to a right to trial by jury. There the Court held that a plaintiff in a stockholder’s derivative suit — traditionally regarded as an equitable action —could not be denied a jury trial when (1) all the claims underlying the action were clearly legal and (2) had the corporation sued in its own right on those claims, there would have been no question as to its right to a jury. Thus, the mere fact that the plaintiffs were stockholders suing in behalf of the corporation, by means of a procedural device of equitable origin, could not, for Seventh Amendment purposes, deprive the action of its essential character as a suit at law.⁸

In the case before us,, however, no legal claims underlie Contractors’ cross-claim. While it is true that the issue of Singleton’s negligence is relevant to the cross-claim, a distinction must be made between the fact of negligence, which may be relevant to a variety of actions, both legal and equitable, and “negligence” as a legal cause of action in tort. The fact of negligence, for example, is also relevant to actions for contribution; yet as we made clear in Jones v. Schramm, supra, contribution is an equitable action that may be tried without a jury. Similarly, the fact that the issue of Singleton’s negligence is relevant to the cross-claim does not convert the action into an essentially legal action.

Our inquiry is not ended, however, because the fact that a claim is equitable does not always deprive the claimant of a right to a jury trial on factual issues relevant to the claim. If there are factual issues common to both legal and equitable claims joined in the same suit, any party has a right to a jury determination of those issues before the court rules on the equitable claim. See Beacon Theaters, Inc. v. Westover, 359 U.S. 500, 79 S.Ct. 948, 3 L.Ed.2d 988 (1959) and Dairy Queen, Inc. v. Wood, 369 U.S. 469, 82 S.Ct. 894, 8 L.Ed.2d 44 (1962). In Beacon Theaters, plaintiffs, threatened by suit by the defendants under the Sherman Act, beat the defendants to court by suing for declaratory judgment and injunctive relief against any action by the defendants. The defendants counterclaimed for treble damages under the Sherman Act, clearly a legal claim. The Supreme Court held that since the dispositive facts on both the plaintiffs’ claim and the defendants’ counterclaim were the same (i. e., plaintiffs’ violation of the Sherman Act vel non), to resolve the plaintiffs’ equity suit first without a jury would in effect preclude subsequent trial by jury on the defendants’ counterclaim, thus depriving defendants of their Seventh Amendment right.

A similar rationale underlay the holding in Dairy Queen, where the plaintiff’s pleading contained both equitable (injunctive relief against trademark infringement) and legal (a request for damages based on the same alleged trademark infringement) claims. The Court held that the preliminary determination of the equitable claims without a jury would preclude a jury trial on the legal claims and thus deprive defendants of their Seventh Amendment rights. As we said in National Life Insurance Co. v. Silverman, 147 U.S.App.D.C. 56, 454 F.2d 899, reversed en banc on other grounds, slip opinion, December 9, 1971:

[T]he theory of these two cases seems clear. Neither party is entitled to a jury trial of an issue which is equitable; both are entitled to a jury trial of an issue which is legal. Where in a single case there are factual issues common to both legal and equitable claims, either party has a constitutional right to a jury trial on the legal issue, and to have that issue resolved by a jury before the court determines the equitable issue.

Isolation of the precise factual issue involved in Contractors’ cross-claim against Singleton reveals that there were no factual issues common to both the legal and equitable claims in the suit, and that the judge’s determination of the equitable issues after the jury’s verdict in no way precluded any party’s right to a jury determination of the legal issues. In the legal action by Dawson against Contractors, the only factual issue was whether Contractors’ negligence was a cause of the injury. While Contractors attempted to persuade the jury that it was not negligent because the injury was caused solely by Singleton’s negligence, Contractors concedes that the jury’s verdict finding Contractors negligent included no finding, implicit or otherwise, as to whether Singleton was jointly negligent. The most that the jury verdict could have implied was that Singleton was not solely negligent. Indeed, Contractors concedes that it did not argue the issue of Singleton’s partial or joint negligence to the jury because it would have been no defense to Dawson’s claim against Contractors, and would merely have weakened that defense in the eyes of the jury.

Thus this case is not like Jones v. Schramm, supra, where Brandon sued Jones and Schramm for negligence, the jury found Schramm negligent and Jones not negligent, and the judge then awarded Schramm contribution from Jones. This court held that the jury’s determination of Jones’s non-negligence could not be overturned by a judge in the subsequent equitable action for contribution, since Jones had a clear right to a jury determination of the factual issues in the original legal action. Here, on the other hand, the judge’s determination that Singleton was not negligent was in no way inconsistent with the jury’s express finding that Contractors was negligent or its implicit finding that Singleton was not solely negligent.

Absent a claim which is equitable in name only but legal in essence, Ross v. Bernhard, supra, and absent factual issues which are common to both legal and equitable claims, Dairy Queen v. Wood and Beacon Theaters v. Westover, supra, the general rule would still seem to apply that the legal issues must be tried by a jury if the claimant so wishes, whereas the claimant’s desires are not controlling in the case of equitable claims.

The judgment of the District Court is

Affirmed.

1 . This is true at least where the tort is not intentional or malum in se. See 18 Am.Jur.2d Contribution §§ 8, 33 et seq. (1965); George’s Radio Inc. v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219 (1942).

2 . See Murray v. United States, 132 U.S.App.D.C. 91, 94, 405 F.2d 1361, 1364; Wien Alaska Airlines v. United States, 375 F.2d 736 (9th Cir.), cert. denied, 389 U.S. 940, 88 S.Ct. 288, 19 L.Ed.2d 291 (1967); American Mutual Liability Co. v. Matthews, 182 F.2d 322 (2d Cir. 1950).

3 . Murray was itself an extension of this court’s rule in Martello v. Hawley, 112 U.S.App.D.C. 129, 300 F.2d 721 (1962), where we held that when a plaintiff settled his claim against one tortfeasor, another tortfeasor against whom the plaintiff actually brought suit was entitled to reduce a resulting judgment by 50%.

Although Murray involved the Federal Employees’ Compensation Act, 5 U.S.C. § 8101 et seq. (1970), its rationale applies equally to the virtually identical provisions of the Longshoremen’s and Harbor Workers’ Compensation Act, 33 U.S.C. § et seq. (1970). Our attention lias been directed to Turner v. Excavation Construction Inc., 324 F.Supp. 704 (D.C. 1971), in which the District Court articulated some difficulties it had with the Murray rule, and refused to extend it to cases under the latter statute. The District Court was concerned primarily with the apparent inability of an employer, if Murray is applied, to obtain reimbursement for payments made under the compensation statute. See 33 U.S.C. § 933 (1970); Randall v. United States, 108 U.S.App.D.C. 317, 282 F.2d 287 (1960); and Pope & Talbot, Inc. v. Hawn, 346 U.S. 406, 411-412, 74 S.Ct. 202, 98 L.Ed. 143 (1953).

The employer’s right to reimbursement from his employee is not an issue in this case. Moreover, the question of Murray’s validity was not argued to this panel, which, in any event, is without authority to overrule prior decisions of this court. Consequently, we assume the continuing validity of the Murray rule and its application to cases involving the Longshoremen’s and Harbor Workers’ Compensation Act.

4 . Because we reach the merits of Contractors’ right to a' jury trial on its cross-complaint, we do not pursue the question of the scope of Magazine’s request for a jury trial.

5 . See 2B Barron and Holtzoff, Federal Practice and Procedure § 873 at 32 (1961).

6 . At the beginning of the trial, the following colloquy took place between court and counsel:

MR. MAGEE (Counsel for Dawson) : I suggest, your Honor, and agree that this case be tried first on the issues of negligence and damages against the two defendants and the third-party defendant, and that the issues framed by the third-party complaint . . . and erossclaims filed on behalf of Magazine Brothers and Contractors ... be determined by your Honor after the jury’s verdict is in without a jury. On questions of fact and laio and — that is all. THE COURT: Do you agree, Mr. Mahoney?

MR. MAHONEY (Counsel for Contractors) Except for the last statement, I believe that the jury determination of negligence on the crossclaim of Contractors with respect to the Murray credit would be determined (sic), I think of the application of law on the cross-claim. I agree with Mr. Magee that the issues of negligence as to the three parties be submitted to the jury and then the Court rule on the crossclaims based on the jury’s findings.

THE COURT: As I see it, the only thing to be submitted to the jury, if the case gets to the jury, is the ease against Contractors, Magazine, and third-party defendant Singleton. . . . AVhat I am trying to do is simplify it for the jury and take these erossclaims away from the jury so they won’t have to be bothered with that. ... I think in a comjdieated case like this it will help everybody and the jury, too, if we confine the case to the three principal parties. .

MR. MAGEE: Yes, your Honor can handle all segregation rights later.

THE COURT: I have done this before. All right, we agree on that.

MR. GREGG (Singleton’s counsel) : Your Honor, I am not going to make any opening statement, nor addressing (sic) the jury on voir dire.

THE COURT: That is my feeling, if I am going to decide these cross claims and all other than principal suits, I don’t see any need for it. (Emphasis supplied).

7 . The historical analysis set forth in the dissent demonstrates at most that the early origins of contribution are shrouded in obscurity and confusion; it does not establish that in 1791 .the courts of law would have entertained an action for contribution, at least as against negligent tort-feasors. While some of the earlier cases after 1791 appear to have recognized contribution against negligent tort-feasors as an available remedy, those that addressed the precise issue of whether it could be pursued at law or only in equity regarded the action as equitable. Thus in Thweatt v. Jones, 1 Rand. 328 (Va.1823), Justice Green observed that

Courts of law enforce contribution only in cases where a contract between the parties to that effect may be presumed, but courts of equity indulge in a larger jurisdiction, and admit contribution whenever the parties were originally subject, jointly, to the burthen and are in aequali jure, and where the party claiming the assistance of the court is not precluded, by his own turpitude, from receiving it.

For purposes of determining the nature of a claim for contribution in this country in 1791, this case seems to us more relevant than the later English case of Betts v. Gibbins, 2 Ad. and E. 75, 111 Eng.Rep. 22 (K.B.1834), on which the dissent relies. For more recent cases regarding contribution as an equitable action, see the cases collected in 18 Am.Jr.2d |§ 3 & 4 (1965).

8 . For a discussion of the potentially severe impact of the expansive nature of Ross v. Bernhard upon the already overtaxed resources devoted to civil litigation, see Note, Ross v. Bernhard: The Uncertain Future of the Seventh Amendment, 81 Yale L.J. 112 (1971).