The right to seek contribution belongs to the tort-feasor who has been forced to pay, and the existence of the right cannot logically depend upon a selection of defendants made by the plaintiff. If it did so depend, the caprice or whim of the plaintiff, or his deliberate intention to fasten liability on one defendant alone, could preclude that defendant from having contribution to which he might otherwise be entitled. Moreover, such an application of the contribution doctrine would open the way to collusion between a plaintiff, and one against whom he has a cause of action, to impose liability solely upon another against whom he has a cause of action for the same wrong.
Knell v. Feltman
Langlands were guests in Knell's automobile when they collided with Feltman's taxi. Mrs. Langland was seriously injured, so she and her husband sued Feltman. After answering, Feltman sued Knell asserting that the collision was cased by Knell's contributing or sole negligence.
The jury found that both Feltman's employee and Knell were negligent and that Langland's damages were $11,500. The court awarded Langlands judgment of $11,500 against Feltman and Feltman $5,750 against Knell.
Contribution should not be available because Langlands did not allege that Knell was a joint tortfeasor.
Can one obtain contribution when the plaintiff did not ask or obtain judgment against the other?
The Federal Rules of Civil Procedure allow a defendant to bring someone else who may be liable into the lawsuit even if plaintiff does not seek a judgment against him.
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[W]hen a tort is committed by the concurrent negligence of two or more persons who are not intentional wrongdoers, contribution should be enforced; that a joint judgment against such tort-feasors is not a prerequisite to contribution between them, and it is immaterial whether they were, or any of them was, personally negligent.