
    Goldman v. Mitchell-Fletcher Company et al.
    
      Joint-tortfeasors — Principal and surety — Subrogation of surety.
    
    Where a judgment for personal injuries has been recovered against joint-tort-feasors and separate appeals have been taken, the surety upon the appeal bond of >ne of them, on payment of the judgment, is entitled to have the judgment marked :o its use and has the right to exercise all the remedies against both joint-tort-feasors which the plaintiff himself could have exercised.
    Rule to mark judgments to the use of surety. C. P. No. 2, Phila. Co., March T., 1924, No. 1331.
    
      W. W. Smithers, for plaintiff; Chester N. Farr, Jr., for defendants.
    Sept. 27, 1927.
   Lewis, J.,

Upon petition of the American Surety Company i rule has been granted upon the plaintiff and both defendants in this case to show cause why the satisfaction of the judgments should not be stricken off md the judgments marked to the use of the petitioner, with the right given to petitioner to exercise all and every the rights and remedies of the plaintiff, from the petition and the answer thereto which has been filed on behalf of >ne of the defendants, Philadelphia Rapid Transit Company, it appears that udgments were recovered by the plaintiff, Gertrude Goldman, and also by íer daughter, Sarah Goldman, against the defendants upon a claim for per-enal injuries by reason of the joint negligence of the defendants. The joint lefendants filed separate appeals from the judgments, and at the request of .he defendant, Mitchell-Fletcher Company, the petitioner, American Surety Company, became its surety in order that its appeal might act as a super-sedeas. No bond was filed on behalf of the other defendant, Philadelphia tapid Transit Company, as it appears the plaintiff’s attorney agreed that he defendant’s appeal should act as a supersedeas. The appeals of the lefendants were unsuccessful.

There was some delay in the payment of the judgments, and in order “to ivoid additional costs and interest,” and “for the protection of its subrogation ■ights until the parties (defendants) work out their contest,” the petitioner 'surety company) paid to the attorney for the plaintiff the amounts of the udgments. The plaintiff’s attorney then entered satisfaction of said judg-nents of record. Demands for the payment of the said sums were made upon he defendants, and upon their failure to pay, the present petition was filed.

As before stated, an answer has been filed by Philadelphia Rapid Transit lompany only. The position assumed by the Philadelphia Rapid Transit lompany is that the petitioner was surety for the other defendant only, and, herefore, as surety, it has no cause of action or other rights against its irincipal’s co-defendant by reason of the payment of the judgment, since here is no right of contribution as between tortfeasors. This position is ought to be supported by a strenuous argument of counsel to the effect that f we grant the present petition, it would operate to defeat the rule of law gainst liability to contribution as between joint-tortfeasors; that the surety 3 entitled to be subrogated only to the rights which its principal possesses, nd its principal, as before stated, has no right to demand contribution. Imphasis is laid on the allegation in the answer — which, not being denied by ny deposition or by replication, must be taken to be true — that the petitioner as taken indemnity from Mitchell-Fletcher Company to protect itself against jss under the bond.

I The cases of Boyer v. Bolender, 129 Pa. 324, and Lillie v. Dennert, 232 Fed. Repr. 104, are relied upon by counsel for the transit company, but these go no further than to hold that one of several joint-tortfeasors cannot compe' contribution from the others by acting- through the agency of a third person,

On the other hand, the cases cited by the petitioner make it clear beyonc any doubt that a surety who pays the amount of a judgment against his principal is entitled to the remedy sought by this petitioner, where the judgment is against the principal alone, and though it has been marked satisfied oi record: Wright v. Grover & Baker Co., 82 Pa. 80; Com., to use, v. Froelich 56 Pa. Superior Ct. 604.

The question presented is an interesting one, upon which there seems to be no direct authority in this jurisdiction, and upon which the authorities else where are not in accord. Thus we find it said in 2 Freeman on Judgments 2360: “In the case of judgment debtors who were joint-tortfeasors, there if ordinarily no right of contribution between them, and a payment by on< satisfies the judgment, even though he may at the same time have had ai assignment executed to a third person. But this rule would not be applicable where payment was made by a surety.”

On the other hand, it is stated in 32 Cyc., 252: “If a person becomes surety for one only of two joint debtors, he cannot recover from the other. . . The cases cited in support of this are Osborn v. Cunningham, 20 N. C. 423, and Bowman v. Blodgett et al., 2 Metc. (Mass.) 308. The court in the first citet case gives as the reason for its decision the lack of privity between th surety and the other defendant. The judgment in that case, as well as in th Massachusetts case, was a joint debt.

The cases of Kolb v. National Surety Co., 176 N. Y. 233, 68 N. E. Repr. 247 and Rosenthal v. New York Rys. Co. and Empire Carting Co., 109 Misc. Reps (N. Y.) 210, are precisely in point, as in each of them the facts were idéntica with those present here. In the Kolb case, Judge Gray, of the Court o Appeals of New York, said: “The appellant argues that when the suret; company paid the judgment recovered by Smith, the effect was the same a though Adwen, for whom it was surety, had paid the judgment against hii and his co-defendants; that, as a judgment recovered in tort, it was extin guished by the payment, and that no right of contribution against this plain tiff or Theodore Smith, who were joint-tortfeasors with Adwen, survived o existed. The general proposition is true that there is no right of contributio as between wrongdoers which can be enforced; for a court of equity, whic alone would have jurisdiction of such an action, will refuse to lend its aid t those who have been guilty of illegal conduct, or who do not come before i with clean hands. . . . That this doctrine of equity would or should exclud from relief a surety who, like this respondent, has been decreed by the coui to be entitled to be subrogated to the rights and remedies of the judgmen creditor, and is, in effect, in the position of a purchaser from the latter o the judgment, I do not believe. If there is a precedent, I do not find it, fo such extreme application of the doctrine. In the first place, a surety wh pays a debt is, by the well-settled law of the land, entitled to stand in th shoes of the creditor, or to be subrogated to all of his rights, remedies an securities with respect to any fund or lien; not upon any contractual basi¡ but upon established principles of equity, or, as said by Chancellor Kent in Cheesebrough v. Millard, 1 Johns. Ch. 412, ‘on mere equity and benevolence In the second place, the surety in this case does not come within the repr< bation of the court in any aspect; for the principle of equal contributio being a just one, even as between wrongdoers, and the denial of its reeognitio resting upon especial grounds, which would be peculiar to the complainant i the bill for equitable relief, this surety is not embarrassed by asking for ths ¡vhich the court had, in the Adwen proceeding, accorded to it. It is innocent )£ any wrongdoing. That it has paid an indebtedness, arising upon a judg-nent in tort against several, for one of the judgment debtors should not, as a natter of natural justice, deprive it of the right, approved as it is by a lecree of the court, to compel the joint-debtors to contribute proportionately ;o the payment of the judgment now its property. The right of subrogation s founded in natural justice, and it should be given effect upon purely equitible considerations.”

In the second cited case (Rosenthal v. New York Rys. Co. et al.), t was said: “It is contended that by paying the judgment the surety dis-:harged the same as to both defendants. This is untenable. . . . The fact hat the original judgment was one sounding in tort, and that New York Railways Company and Empire Carting Company were joint-tortfeasors, in to way mitigates [militates] against the right of the surety company to be ubrogated to the plaintiff’s rights as against both of these defendants.”

We agree with Judge Gray, and, hence, make absolute the rules. The vast aerease in number and speed of vehicles using the highways has made the [uestion herein raised a live one; collisions have multiplied and joint respon-ibility is common. The principle of equal contribution between persons so ointly negligent is a just one, and we are not inclined to apply the old rule, except where it has been decreed to clearly govern. The subject should be ubmitted to the legislature, that a statute to compel equal contribution might ie enacted. Just why one negligent operator of a vehicle should escape ienalty because of more ready recovery by the plaintiff from another joint-efendant is not rationally explainable.  