Summary
In Klaas v. Continental Southern Lines, 225 Miss. 94, 82 So.2d 705 (1955), the issue was whether a statute that, for the first time allowed joint tortfeasors to obtain contribution among themselves would apply to a judgment entered before the statute's effective date.
Summary of this case from Cellular S., Inc. v. Bellsouth Telecomms., LLCOpinion
No. 39723.
October 10, 1955.
1. Contribution — joint tortfeasors — statutes.
Before statute making joint tortfeasors liable for their pro rata share of a joint and several judgment to the joint tortfeasor who has paid more than his pro rata share was passed, there was in Mississippi no right in joint tortfeasors to obtain contribution between themselves. Chap. 259, Laws 1952.
2. Contribution — same — same.
Statute referred to in Headnote No. 1 created rights which did not exist before and destroyed a substantive right, a valid defense, to an action for contribution which was available before the enactment of the statute. Chap. 259, Laws 1952.
3. Statutes — construction — prospective — retroactive.
Statutes are to be construed as having only a prospective and not a retroactive effect, unless the purpose and intention of the Legislature to give them a retrospective operation clearly appears.
4. Statutes — construction — "in force and effect after passage."
Provision in statute that "The Act shall take effect and be in force from and after its passage" shows a Legislative intent to make the statute prospective only in its operation.
5. Contribution — joint tortfeasors — statutes — construction — word "is."
Under statute referred to in Headnote No. 1 respecting liability of joint tortfeasors for contribution, use of word "is" in clause providing that in any action for damages where judgement "is" rendered against two or more defendants jointly and severally, does not denote a present tense but has a future signification so that statute is to be applied prospectively and not retroactively. Chap. 259, Laws 1952.
6. Contribution — joint tortfeasors — statutes — construction — word "judgment."
Word "judgment" indicated in Headnote No. 4 has reference to judgment in Trial Court which is the effective adjudication of plaintiff's rights, rather than the affirming judgment of reviewing court.
7. Appeal — supersedeas — Supreme Court affirmance — confirms Trial Court's judgment.
Although an appeal with supersedeas suspends effect of judgment in Trial Court, effect of Supreme Court affirmance of judgment is to establish or confirm validity of judgment of Trial Court.
8. Contribution — joint tortfeasors — statutes.
Where prior to passage of statute making joint tortfeasors liable to one another for their pro rata share of joint and several judgment where one joint tortfeasor has paid more than his pro rata share, judgments were rendered against joint tortfeasors but such judgments were not affirmed by reviewing court or paid by one of the joint tortfeasors until after effective date of statute, statute was not applicable and paying joint tortfeasor had no right of contribution. Chap. 259, Laws 1952.
Headnotes as approved by Ethridge, J.
APPEAL from the Circuit Court of Madison County; M.M. McGOWAN, Judge.
Hedgepeth, Ewing Hedgepeth, Jackson; Hermon Dean, Canton, for appellants.
I. The motion to strike should have been sustained.
A. The Circuit Court of Madison County did not have jurisdiction of either the subject matter or the parties. National Casualty Co. v. Calhoun, 219 Miss. 9, 67 So.2d 908; Strain v. Gayden, 197 Miss. 353, 20 So.2d 697; Sec. 1401, Code 1942; 21 C.J.S., Sec. 94 p. 147; 49 C.J.S., Sec. 230 p. 438.
B. The remedy of Continental Southern Lines, Inc., against the respondents in the motion (if there was such a remedy) was by independent suit therefore, not by proceedings ancillary to these old suits. Secs. 335.5, 1463, Code 1942; Chap. 259, Laws 1952; Sec. 211-a, New York Civil Practice Act; Chap. 1 Sec. 1-240, North Carolina Statutes.
C. The purported pleading filed herein and denominated "Motion for Judgement" is unknown to the practice of the Circuit Courts of this State either under the common law or statutes, hence has no standing or efficacy as a pleading and should be striken as redundancy. McDowell v. Minor, 158 Miss. 788, 131 So. 278; Southland Broadcasting Co. v. Tracey, 210 Miss. 836, 50 So.2d 572.
II. The plea in abatement should have been sustained. Southland Broadcasting Co. v. Tracey, supra.
III. The demurrer should have been sustained.
A. Significant facts. Continental Southern Lines v. Klaas, 217 Miss. 795, 65 So.2d pp. 575, 596, 833, 67 So.2d 256; Sec. 335.5, Code 1942; Chap. 359, Laws 1952.
B. At common law, and in Mississippi prior to enactment of Chapter 259, Laws of 1952 (Code Section 335.5), effective April 15, 1952, tortfeasors who were jointly and severally liable for a given tort were not entitled to apportionment or contribution amongst themselves. Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541; Mississippi Cent. RR. Co. v. Roberts, 173 Miss. 487, 160 So. 604; Teche Lines v. Pope, 175 Miss. 393, 166 So. 539; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; 13 Am. Jur., Secs. 37-8 pp. 34, 36; 18 C.J.S., Sec. 11 p. 14; A.L.I., Restatement of the Law (Restitution), Sec. 102 p. 429.
C. The statute has prospective effect only and has no application to judgments rendered before its effective date. Bell v. Union Planters Bank Tr. Co., 158 Miss. 486, 130 So. 486; Brown v. Reeves, 129 Miss. 755, 92 So. 825; Hester, Sheriff v. Copiah County, 186 Miss. 716, 191 So. 496; Jefferson Standard Life Ins. Co. v. Dorsey, 178 Miss. 852, 173 So. 669; Jennings v. Lowrey, 147 Miss. 673, 112 So. 692; McCullen, Motor Vehicle Comptroller v. State ex rel. Alexander, Dist. Atty., 217 Miss. 256, 63 So.2d 856; Mississippi Cent. RR. Co. v. City of Hattiesburg, 163 Miss. 311, 141 So. 897; Pan-American Petroleum Corp. v. Miller, 154 Miss. 565, 122 So. 393; Power v. Calvert, 112 Miss. 319, 73 So. 51; Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977; State, Etc. v. Cloud, 146 Miss. 642, 112 So. 19; State ex rel. Knox v. Union Tank Car Co., 151 Miss. 797, 119 So. 310; Secs. 1802, 1804, 1951, Code 1930; Sec. 335.5, Code 1942; Chap. 135, Laws 1910; Chap. 112, Laws 1912; Chap. 149, Laws 1918; Chaps. 129, 155, 196, Laws 1926; Chap. 198, Laws 1928; Chap. 259, Laws 1952; 82 C.J.S., Sec. 414 p. 981; Sedgwick on Construction of Statutory and Constitutional Law, p. 164; Sutherland on Statutory Construction, Sec. 464.
D. The 1952 Statute, if construed to be applicable to the facts in the case at bar, would be retroactive in effect and, therefore, violative of the Due Process Clauses of the Federal and State Constitutions, and the Ex Post Facto Clause of the State Constitution. Albritton v. City of Winona, 181 Miss. 75, 178 So. 799, 303 U.S. 627, 82 L.Ed. 1088, 58 S.Ct. 766; Continental Southern Lines v. Klaas, supra; Richards v. City Lumber Co., supra; Amend. XIV Sec. I, U.S. Constitution; Secs. 14, 16, Constitution 1890; Sec. 335.5, Code 1942; Chap. 1, Laws 1936 (1st Ex. Sess.); Chap. 259, Laws 1952.
E. Since, construed to have retroactive effect, the statute would be invalid, this is a fundamental reason for the ancient rule that statutes are construed prospectively only, in the absence of impelling language to the contrary. McCullen, Motor Vehicle Comptroller v. State ex rel. Alexander, Dist. Atty., supra; Miller, State Auditor v. State ex rel. Russell, Dist. Atty., 130 Miss. 564, 94 So. 706; Moree v. State, 130 Miss. 341, 94 So. 226; Quinn v. City of McComb, 212 Miss. 730, 55 So.2d 479; Richards v. City Lumber Co., supra; Secs. 90, 206, Constitution 1890; Chap. 21 Sec. 2, Chap. 211, Laws 1922; Chap. 259 Sec. 2, Laws 1952.
F. The judgment rendered July 19, 1951, against Continental Southern Lines, Inc., M.S. Cox, Jr., and Lawyer Partee, jointly and severally, as tortfeasors, was effective from and after the date of its rendition; its subsequent affirmance in the Supreme Court doing no more than determining that it was good and effective from and after the date it was rendered. Early v. Board of Suprs., 182 Miss. 636, 181 So. 132; President, Etc., of Planters Bank v. Calvit, 11 Miss. 143, 3 Sm. M. 143; Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So.2d 91.
G. Other states having a Contribution Statute whose courts have passed on the "Retrospective Question" have held that the statutes were not retrospective (North Carolina, Virginia, Delaware, Arkansas, Pennsylvania, and Texas). Bargeon v. Transportation Co., 196 N.C. 776, 147 S.E. 299; Baylor University v. Bradshaw, 52 S.W.2d 1094; Builders Supply Co. v. McCabe, 336 Pa. 322, 77 A.2d 368; Commercial Casualty Co. v. Leonard, 210 Ark. 575, 196 S.W.2d 919; Distefano v. Lamborn (Del.), 81 A.2d 675; Howey v. Yellow Cab Co. (Pa.), 181 F.2d 967; Norfolk Southern Ry. Co. v. Beskin, 140 Va. 744, 125 S.E. 678; Delaware Uniform Contribution Among Tortfeasors Act; Chap. 1 Sec. 1-240, North Carolina Statutes; Sec. 8-627, Virginia Code of 1950; Vernon's Civil Statutes of Texas, Art. 2212.
H. The rights involved are substantive, not procedural merely, hence the statutes may not be construed to have retroactive effect. Bargeon v. Transportation Co., supra; Baylor University v. Bradshaw, supra; Bell v. Union Planters Bank Tr. Co., supra; Commercial Casualty Ins. Co. v. Leonard, supra; Distefano v. Lamborn, supra; Howey v. Yellow Cab Co., supra; Mississippi Cent. RR. Co. v. City of Hattiesburg, supra; Mississippi Cent. RR. Co. v. Roberts, supra; Norfolk Southern Ry. Co. v. Beskin, supra; Richards v. City Lumber Co., supra; Secs. 335.5, 1463, Code 1942; Chap. 259, Laws 1952; Sec. 8-627, Virginia Code of 1950; Black's Law Dictionary (3rd ed.), terms "adjective law" and "substantive law."
IV. The minority view. Bedier v. Fuller, 116 Mich. 126, 74 N.W. 506; Brown v. Cranston (N.Y.), 132 F.2d 631; Deuscher v. Cammerano, 256 N.Y. 328, 176 N.E. 412; First Natl. Bank of Ovid v. Steel, 136 Mich. 588, 98 N.W. 786; Fox v. Western N.Y. Motor Lines, Inc., 257 N.Y. 305, 178 N.E. 289; Hollett v. Gordon, 128 Mich. 364, 81 N.W. 508, 82 N.W. 827, 87 N.W. 261; People v. Cherulrick, 268 N.Y.S. 336; Sec. 211-a, New York Civil Practice Act; Compiled Laws of Michigan of 1897, Secs. 10, 421.
V. The Trial Judge's opinion. Distefano v. Lamborn, supra; Fisher v. Hervey, 6 Colo. 16; Forsythe v. Los Angeles Ry. Co., 149 Cal. 569, 87 P. 24; Kemerer v. State Farm Mut. Auto Ins. Co., 201 Minn. 239, 276 N.W. 228, 114 A.L.R. 173; Laird v. Carton, 196 N.Y. 169, 89 N.E. 822; Meridian City Lines v. Baker, supra; Mississippi Cent. RR. Co. v. Roberts, supra; Teche Lines v. Pope, supra; Thomas v. Rounds, supra; Sec. 335.5, Code 1942; Chap. 259, Laws 1952; Anno. 14 A.L.R. 179; 18 C.J.S., Sec. 11 p. 14; A.L.I., Restatement of the Law (Restitution), Sec. 102 p. 429; Mason's Minnesota Statutes of 1927, Sec. 9410.
Butler, Snow, O'Mara, Stevens Cannada, Jackson, for appellees.
I. It is the position of Continental that the important dates to be considered by this Court in determining the application of Chapter 259 of the Laws of 1952 are the dates of September 16, 1950, the date of the accident, and of October 9, 1953, the date on which Continental paid "an amount greater than the total sum of the judgment divided by the number of defendants against whom the judgment was rendered."
II. The accident occurred on September 16, 1950, and on that date the original plaintiffs became the owners of certain vested rights. They had the right to file suit in the courts of Mississippi, and recover damages from the responsible parties for all damages sustained as a result of this accident. They had the right to select the parties that they deemed to be responsible and to sue one or all of them. They had the right to select the forum in which to file the suit, subject to the applicable statutes.
III. And what was the position of the parties responsible for this accident? Each of these parties had become responsible for the full amount of the damages incurred as a result of this accident. If their wrongdoing or tortious conduct had been a proximate cause of the accident, then each one was responsible for the full amount of the damages resulting therefrom. There was no way to escape this liability. One could not settle the claim by paying the full amount of the damages sustained and obtaining a general release and then sue the other responsible parties for their pro rata share of the amount of the damages sustained. As long as the plaintiffs filed the suit in the proper Court and obtained process in accordance with the applicable law, each tortfeasor could do nothing but await the outcome of the litigation, so as to know the exact amount of the damages sustained.
IV. Was this changed upon the rendition of a judgment by the Circuit Court? No, there was no basic change in the relationship of the parties by the rendition of the judgment in the Circuit Court. A jury had rendered a verdict, in which they had found the defendants guilty of tortious conduct which proximately resulted in the accident and the injuries received as a result thereof. This was simply a finding by the jury that the defendants against whom judgment was rendered had been guilty of such conduct. The jury also assessed the amount of the damages sustained by the plaintiffs as a result of the accident. This assessment of the damages by the jury, which was subsequently put into the form of a judgment by the Circuit Court, was a tentative fixing of the amount of the damages sustained by plaintiffs as a result of the accident. All of the defendants against whom this judgment was rendered were responsible and liable for the full amount of the judgment. There was no basic change in their position, except that their liability had been tentatively established by a jury, and the amount of this liability had been tentatively fixed by a jury.
V. Assuming that Chapter 259, Laws of 1952, had been in effect at the time of the rendition of the judgment by the Circuit Court, the question then presents itself as to whether the provisions of this statute would have been available to the defendants against whom the judgment was rendered. Could one of these defendants have then paid the full amount of the judgment and then sued the other defendants for a pro rata share of this amount? The answer must be in the negative. Each of the parties had a right, granted by statute, to appeal from this judgment, with supersedeas. As a matter of fact, the parties did appeal, and the appeal was taken with supersedeas. Suppose, under these circumstances, one of the defendants had paid the full amount of the judgments. Certainly, he could not then file a claim against the other defendants for a pro rata share of the amount paid, because the liability of the defendants appealing had not been finally fixed, nor had the amount of the damages been finally fixed. Clearly, the parties were in substantially the same position that they were on the day of the accident, the only difference being that the liability for the accident and the damages sustained by the plaintiff had been tentatively established by a jury. Had Chapter 259, Laws of 1952, been in effect as of that date, it would not have effected, in any way, the rights of the parties.
VI. The next question that arises concerns the effect of the judgment by the Supreme Court. Here, for the first time, the liability of the defendants and the exact amount of the damages was finally determined. Upon the rendition of this judgment, there was nothing the defendants could do but pay the amount of the judgment to the plaintiffs. The rights of the defendants were still the same. Each one was liable for the full amount of the judgment. Section 1901, Mississippi Code of 1942, provides as follows: ". . . and when one judgment has been recovered against several defendants, execution shall be issued thereon against all the defendants, and not otherwise; . . ."
VII. In other words, the defendants against whom the judgment of the Supreme Court had been rendered were liable for the full amount of the judgment, and it was mandatory that execution be issued as against all of the defendants. Each defendant owed the full amount of the judgment, and it was mandatory that execution be issued as against all of the defendants. Certainly, no one of the defendants had any kind of a vested right in the hope that the Sheriff in actually levying the execution would obtain more from one of the other defendants than from him. Insofar as any rights that he had were concerned, he was liable for the full amount of the judgment, and the statute required that execution be issued as against him.
VIII. The next questions arise concerning the date of October 9, 1953, on which day Continental paid more than its pro rata share of the judgment. Approximately eighteen months before such payment, the Mississippi Legislature had enacted into law Chapter 259 of the General Laws of Mississippi of 1952, which statute provided for just such an occurrence as this. At the time of the rendition of the judgment in the Lower Court, each defendant was responsible for the full amount of the judgment. At the time of the rendition of the judgment by the Supreme Court, each defendant was responsible for the full amount of the judgment. It was not until one of the defendants paid more than his proportionate part of the judgment that the statute came into play, and the effect of the statute was simply to give to such defendant a possible reduction in the over-all amount ultimately paid by him. In other words, the statute was just as applicable to M.S. Cox, Jr., and Lawyer Partee as it was to Continental. M.S. Cox, Jr., and Lawyer Partee were liable for the full amount of the judgment, and the statute required that execution be issued against them. Continental was responsible for the full amount of the judgment, and the statute required that execution be issued against it. Chapter 259 of the Laws of 1952 did not take any rights away from either of the defendants. It simply provided that if either one did actually pay more than his pro rata share of the judgment, then "the other defendants shall be jointly and severally liable to him for the amount so paid in excess of his proportionate part." The statute does not come into play upon the rendition of any judgment, and the only part that a judgment plays is that a judgment must have been rendered against two or more defendants, jointly and severally, as joint tortfeasors, in order to make the statute applicable. The effective event that brings the statute into play is the payment by one defendant of more than his proportionate part.
IX. Throughout their brief, the attorneys for M.S. Cox, Jr., and Lawyer Partee have contended that Chapter 259 of the Laws of 1952 applied directly to the tort involved. They insist that this statute deprives them of a vested right that arose with the occurrence of the accident. This is obviously unsound. The statute has no application to the tort or the establishment of the liability for the injuries resulting therefrom. The statute applies when one judgment debtor pays more than his pro rata share of the judgment. We, therefore, repeat: the important dates to be considered by this Court, insofar as the application of this statute is concerned, are the dates of September 16, 1950, the date the accident occurred, and the date of October 9, 1953, the date Continental paid more than its pro rata share of the judgment.
X. It is the position of Continental that since the statute involved did not come into play until one defendant had paid more than his pro rata share of the judgment rendered against joint tortfeasors, that the application of this statute to these cases gives to the statute a prospective application, as distinguished from a retrospective application. The statute was passed and became effective approximately eighteen months before Continental paid more than its pro rata share of these judgments. Therefore, it is only logical and proper to apply the statute in these cases, and in so doing the statute is given a prospective application.
XI. It is the further position of Continental that should this Court be of the opinion that the application of this statute to these cases is, in effect, giving to the statute a retrospective application, then such would be proper and valid, because the statute is remedial or procedural and does not affect any substantive or vested rights of the parties. The only right that this statute could possibly affect is the hope or wish or desire of a judgment debtor that when the Sheriff levies execution pursuant to a writ of execution against several defendants, that the Sheriff will actually levy either exclusively or primarily on the property of one of the other defendants. Certainly, this cannot be a substantive or vested right. Such a defendant is liable for the full amount of the judgment, and the remedy afforded him whereby he may reduce the final effect of paying more than his equitable share deprives him of no substantive or vested right. The statute is clearly procedural or remedial, correcting an obvious inequality and inequity in the payment of judgments by joint judgment debtors.
XII. It is the further position of Continental that should this Court be of the opinion that Chapter 259 of the Laws of 1952 applies only to judgments rendered after the effective date thereof, that the statute is still applicable to these cases, because the judgments referred to in the statute must, of necessity, be the final judgments as rendered by the courts of last resort. As we have previously indicated, the statute could not give to one of the judgment creditors the right to pay the full amount of the judgment as rendered by the Circuit Court and then call upon the other judgment creditors for their pro rata share thereof. The right to appeal with supersedeas is granted by statute, and therefore the statute cannot become available until after a judgment has been rendered from which no appeal is taken. We will discuss this principle at length in a subsequent portion of this brief; however, we would like to restate here our position that we do not feel that the date of the judgments is of real significance. The rendition of the judgment gives no cause of action under this statute. The only thing that can bring the statute into play is the payment by one judgment creditor of more than his pro rata share of the judgment.
XIII. It is the further position of Continental that the pleadings and procedure in the Court below are entirely proper. We believe that we have followed the identical course intended by the Legislature. The Supervision as to the payment of the judgment rendered should be in the Court where the suits were originally filed, and should be in the same cause. In an effort to be completely safe, however, the pleadings as filed have all of the essentials of a declaration, and all of the steps necessary for the taking of a separate and distinct judgment were taken. We will treat this position in a subsequent portion of our brief; however, we believe that the statutes and decisions of this State certainly are clear and give to the Circuit Court of Madison County jurisdiction of the subject matter and of the parties, and, therefore, the jurisdiction to render the judgments rendered in these cases.
XIV. M.S. Cox, Jr., and Lawyer Partee had no vested right in the hope or desire that the Sheriff of Madison County would actually levy execution against Continental Southern Lines alone.
A. The basic theory of the law of contribution. Brown Root, Inc. v. United States, 92 F. Supp. 257; Dennis v. Gillespie, 24 Miss. 581; Deuscher v. Cammerano, 256 N.Y. 328, 176 N.E. 412; George's Radio, Inc. v. Capital Transit Co., 126 F.2d 219; Hobbs v. Hurley (Maine), 104 A. 815; Thomas v. Rounds, 161 Miss. 713, 137 So. 894; Sec. 1901, Code 1942; 13 Am. Jur., Contribution, Secs. 3, 4, 10, 37-9, 46, 48; Anno. 64 A.L.R. 213; 18 C.J.S., Contribution, Secs. 2, 11(a).
B. What is meant by the term "vested right?" Campbell v. Holt, 115 U.S. 620, 29 L.Ed. 483, 6 S.Ct. 209; Deposit Guaranty Bank Tr. Co. v. Williams, 193 Miss. 432, 9 So.2d 638; Dickey v. Bank of Clarksdale, 183 Miss. 748, 184 So. 314; Mills v. Geer, 111 Ga. 275, 52 L.R.A. 934; Mississippi Baptist Hospital v. Holmes, 214 Miss. 906, 55 So.2d 142; Munn v. Illinois, 94 U.S. 113, 24 L.Ed. 77; Sullivan v. Ammons, 95 Miss. 196, 48 So. 244; Sec. 4, Code 1906; Secs. 743, 1901, Code 1942; 11 Am. Jur., Constitutional Law, Sec. 370; 16 C.J.S., Constitutional Law, Sec. 257; Sutherland on Statutory Construction, p. 548.
XV. Chapter 259 of the Laws of 1952 is applicable to these cases.
A. Continental Southern paid more than its proportionate part of the judgments subsequent to the effective date of the statute and, therefore, the statute is applicable to these cases. Distefano v. Lamborn (Del.), 81 A.2d 675; First Natl. Bank of Ovid v. Steel, 136 Mich. 588, 99 N.W. 786; Fisher v. Hervey, 6 Colo. 16; Laird v. Carton, 196 N.Y. 169, 89 N.E. 822; Sampeyriac v. United States, 8 L.Ed. 665; Shield Crawt v. Moffett, 294 N.Y. 180, 61 N.E.2d 435; Sec. 335.5, Code 1942; Amnesty Act of 1904; Chap. 259, Laws 1952; New Jersey Joint Tortfeasors' Contribution Law; 13 Am. Jur., Contribution, Secs. 10, 55, 88; 16 C.J.S., Constitutional Law, Sec. 261; 18 C.J.S., Contribution, Sec. 11; Vol. IX, Uniform Laws Annotated, p. 153.
B. Cases involving the Uniform Joint Tortfeasor Act or similar Acts are not in point. Bargeon v. Transportation Co., 196 N.C. 776, 147 S.E. 299; Baylor University v. Bradshaw, 52 S.W.2d 1094; Brown v. Cranston, 132 F.2d 631; Commercial Casualty Co. v. Leonard, 210 Ark. 575, 196 S.W.2d 919; Crow v. Cartledge, 99 Miss. 281, 54 So. 947; Deuscher v. Cammerano, supra; Fox v. Western New York Motor Lines, 257 N.Y. 307, 178 N.E. 289; Howey v. Yellow Cab Co., 181 F.2d 967; Norfolk Southern Ry. Co. v. Beskin, 140 Va. 744, 125 S.E. 678; Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 102 A.2d 587.
C. The term "judgment" in the statute refers to final judgments from which no appeals have been or can be prosecuted. Edmonds v. Delta Democrat Pub. Co., 221 Miss. 785, 75 So.2d 73; O'Bannon v. Greenville Commercial Body Co., 159 Miss. 68, 132 So. 87; Stone v. McKay Plumbing Co., 200 Miss. 792, 26 So.2d 349; White v. State, 190 Miss. 589, 195 So. 479; Sec. 1975, Code 1942.
XVI. The procedure followed in the Lower Court was correct. Aven v. Singleton, 132 Miss. 256, 96 So. 165; Bell v. Clark, 71 Miss. 607, 14 So. 318; Coopwood v. McCandless, 99 Miss. 364, 54 So. 1007; Lancaster v. Jordan Auto Co., 185 Miss. 530, 187 So. 535; McKay v. Citizens Rapid Transit Co., 190 Va. 851, 59 S.E.2d 121, 20 A.L.R. 2d 918; Mahaffey v. Mahaffey, 176 Miss. 733, 170 So. 289; Mayflower Mills v. Breeland, 168 Miss. 207, 149 So. 787; Mississippi Cent. RR. Co. v. Roberts, 173 Miss. 487, 160 So. 604; Mobile Ohio RR. Co. v. Watly, 69 Miss. 475, 12 So. 558; Moore v. Montgomery Ward Co., 171 Miss. 420, 156 So. 875; Moore v. Summerville, 80 Miss. 323, 32 So. 294; Neely v. Allis-Chalmers Mfg. Co., 174 Miss. 519, 165 So. 114; Southeastern Exp. Co. v. Namie, 182 Miss. 447, 181 So. 515; Stone v. McKay Plumbing Co., supra; Sec. 156, Constitution 1890; Sec. 1464, Code 1942; Sec. 211-a, New York Civil Practice Act; Chap. 1 Sec. 1-240, North Carolina Statutes.
XVII. The Circuit Court of Madison County, Mississippi, in both of said consolidated proceedings, erred in failing to award Continental, cross-appellant, interest, at the lawful rate, on the amounts sued for, from and after October 9, 1953, which was the date on which cross-appellant paid in full the judgment of the Supreme Court of Mississippi entered jointly against cross-appellant and cross-appellees. Davis v. Broad St. Garage, 232 S.W.2d 355; Employers Mut. Liability Ins. Co. v. Derfus, 259 Wis. 489, 49 N.W.2d 400, 27 A.L.R. 2d 1264; Necedah Mfg. Corp. v. Juneau County, 206 Wis. 316, 237 N.W. 277, 96 A.L.R. 4; Trinidad Asphalt Mfg. Co. v. Gregory, 166 F.2d 745; Washington v. Planters Bank, 2 Miss. (1 How.) 230; 13 Am. Jur., Contribution, Sec. 124; Anno. 27 A.L.R. 2d 1268; 18 C.J.S., Contribution, Sec. 11.
APPELLANTS IN REPLY.
I. The motions to strike and the pleas in abatement. Chisholm v. Gilmer, 299 U.S. 99, 81 L.Ed. 63, 57 S.Ct. 65; Gordon v. Funkhouser, 100 Va. 675, 42 S.E. 677; McKay v. Citizens Rapid Transit Co., 190 Va. 851, 59 S.E.2d 121, 20 A.L.R. 2d 918; Reed v. Gold, 102 Va. 37, 45 S.E. 868; Shearin v. Virginia Elec., Etc., Co., 182 Va. 573, 29 S.E.2d 841; Virginia Hot Springs Co. v. Schreck, 131 Va. 581, 109 S.E. 595; Sec. 8-717, Virginia Code of 1950.
II. Substantive law of Mississippi prior to enactment of Contribution Statute. Mississippi Cent. RR. Co. v. Roberts, 173 Miss. 487, 160 So. 604.
III. Applicability of Chapter 259, Laws of 1952, to these cases. Deuscher v. Cammerano, 256 N.Y. 328, 176 N.E. 412; Distefano v. Lamborn (Del.), 81 A.2d 675; First Natl. Bank of Ovid v. Steel, 136 Mich. 588, 99 N.W. 786; Fisher v. Hervey, 6 Colo. 16; Laird v. Carton, 196 N.Y. 169, 89 N.E. 822; North British Mercantile Ins. Co. v. Edwards, 85 Miss. 322, 37 So. 748; Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 102 A.2d 585; Sampeyriac v. United States, 8 L.Ed. 665; Shield Crawt v. Moffett, 294 N.Y. 180, 61 N.E.2d 435.
IV. Applicability of decisions under Uniform Joint Tortfeasor Act. Bargeon v. Transportation Co., 196 N.C. 776, 147 S.E. 299; Brown v. Cranston, 132 F.2d 631; Fox v. Western N.Y. Motor Lines, 257 N.Y. 307, 178 N.E. 289; Norfolk Southern Ry. Co. v. Beskin, 140 Va. 744, 125 S.E. 678; Sec. 8-627, Virginia Code of 1950; Vol. IX, Uniform Laws Annotated, p. 153.
The question is whether the 1952 statute providing for contribution between joint tort feasors is applicable to judgments rendered before that date, but which are affirmed on appeal and payment of them made by one judgment debtor after the statute went into effect. We do not think it is.
These two cases have been consolidated. On September 16, 1950, Clarence Klaas was killed in an automobile accident, and his widow, Mrs. Juanita Saunier Klaas, obtained a judgment on July 19, 1951, against Continental Southern Lines, Inc., M.S. Cox, Jr. and Lawyer Partee, in the amount of $15,000. In the same collision Lawrence J. Klaas, Sr. was killed, and his widow, Mrs. Ida Mary Klaas, and minor children, obtained a judgment on July 19, 1951, against Continental Southern Lines, Inc., M.S. Cox, Jr. and Lawyer Partee, in the amount of $40,000. From these judgments of the Circuit Court of Madison County, Continental, Cox and Partee appealed to this Court.
On April 15, 1952, Chap. 259, Mississippi Laws of 1952, went into effect. It provides: "Section 1. In any action for damages where judgment is rendered against two (2) or more defendants, jointly and severally, as joint tort feasors, the defendants against whom such a judgment is rendered shall share equally the obligation imposed by such judgment, and if one (1) of such defendants pays an amount greater than the total sum of the judgment divided by the number of defendants against whom the judgment was rendered, then the other defendants shall be jointly and severally liable to him for the amount so paid in excess of his proportionate part; provided that no defendant shall be liable to any other defendant for more than his proportionate share of the original judgment.
"Provided further, that in determining, for the purpose of the above contribution, the number of defendants against whom the judgment has been rendered, an employer and his employee, or a principal and his agent, shall be considered as one (1) defendant when the liability of such employer or principal has been caused by the wrongful or negligent act or commission of his employee or agent.
"Provided further, that the liability of such defendants against which such a judgment has been rendered shall be joint and several as to the plaintiff in whose favor such judgment has been rendered.
"Section 2. This act shall take effect and be in force from and after its passage."
On June 8, 1953, the two judgments of the circuit court were affirmed. Continental Southern Lines, Inc. v. Klaas, 217 Miss. 795, 65 So.2d 575; 217 Miss. 853, 65 So.2d 596. Suggestions of error were overruled on July 3, 1953. 217 Miss. 851, 65 So.2d 833; 217 Miss. 855, 65 So.2d 24, 834. On October 5, 1953, second suggestions of error were dismissed. 217 Miss. 851, 67 So.2d 256. On October 9, 1953, Continental paid in full both of these judgments, plus interest and damages.
On October 26, 1953, Continental filed in the Circuit Court of Madison County a "motion for judgment" or declaration in two separate actions, making Cox and Partee defendants, and process was served upon them. These are the suits now before this Court. The motions or declarations alleged the above stated facts and demanded a judgment in each against Cox and his agent Partee for one-half of the amount paid by Continental in full for the judgments obtained against all of them in the Klaas cases. The demand was based upon Chap. 259, Laws of 1952. The circuit Court entered judgments in favor of Continental against Cox and Partee in the sums demanded, being one-half of the judgments previously paid by Continental, but refused to allow interest on the amount sued for from and after October 9, 1953, the date of payment. The circuit court held that the act did not deal with substantive rights, but was remedial and procedural in its nature; that a joint tort feasor who may have paid a judgment prior to the statute had a "right" of contribution, but could not enforce it; that Chap. 259 removed this bar; that the Supreme Court's judgment of affirmance was the judgment referred to in the act, and it was rendered after the effective date of the statute; and that the liability and rights of the parties under the act have their inception in the act of paying rather than in the act of rendering judgment, the date of payment being the determinative date. Hence the trial court thought that applying the statute to the present facts did not make it retroactive, but prospective only.
In brief, the significant dates are as follows: The accident occurred in 1950, judgment was rendered against Continental, Cox and Partee in 1951, Chap. 359 became effective in 1952, and the judgment was affirmed in this Court in 1953.
(Hn 1) Before Chap. 259 was passed, there was in Mississippi no right in joint tort feasors to obtain contribution between themselves. Thomas v. Rounds, 161 Miss. 713, 137 So. 894 (1931); Mississippi Central R.R. Company v. Roberts, 173 Miss. 487, 160 So. 604 (1935); Teche Lines v. Pope, 175 Miss. 393, 166 So. 539 (1936); Meridian City Lines v. Baker, 206 Miss. 58, 39 So.2d 541 (1949). (Hn 2) Although this might be regarded as an exception to the general rule allowing contribution, we think that this principle, irrespective of its merits or defects if it were being considered as an original question, was a part of the substantive law of the state prior to the passage of Chap. 259. Mississippi Central R.R. Company v. Roberts, supra, calls it "settled substantive law." The effect of the statute was to create rights which did not exist before. And it destroyed a valid defense to an action available before the enactment of the statute. Richards v. City Lumber Co., 101 Miss. 678, 57 So. 977 (1912). It took away a substantive right, a valid defense, and created a right in a joint tort feasor who has paid the entire judgment.
(Hn 3) Of course whether a statute operates prospectively or retrospectively is a matter of legislative intent. But it is a well-settled and fundamental rule of statutory construction that statutes are to be construed as having only a prospective and not a retroactive effect, unless the purpose and intention of the Legislature to give them a retrospective operation clearly appears. 82 C.J.S., Statutes, Sec. 414, p. 981. In the instant case, appellants Cox and Partee had a valid defense to a suit for contribution by their joint tort feasor, Continental, prior to the passage in 1952 of Chap. 259. This valid defense was a substantive right. Hence the problem is to determine from the statute whether the Legislature intended to destroy this right retroactively.
(Hn 4) Sec. 2 specifically provides that "This act shall take effect and be in force from and after its passage." In McCullen v. State, 217 Miss. 256, 63 So.2d 856 (1953), it was held that this provision in a statute unequivocally shows a legislative intention to make the statute prospective only in its operation. (Hn 5) Sec. 1 of Chap. 259, states that "In any action for damages where judgment is rendered against two or more defendants, jointly or severally, as joint tort feasors, the defendants against whom such a judgment is rendered shall share equally the obligation imposed by such judgment, . . ." Here we think that the Legislature was referring to judgments rendered after the effective date of the statute. The verb "is" is the third person singular, present indicative of the verb "be". Usually it denotes a present tense, but that limitation in this statute is not proper. By reason of the context, the meaning of this word may have future signification, and that appears to be the intention in Sec. 1, 48 C.J.S., p. 774. Somewhat analogous is Botts v. Simpson, 167 P.2d 231 (Calif. 1946).
(Hn 6) There is nothing in the statute to indicate that the Legislature intended to make the new law apply to judgments rendered before its effective date. Many of the cases cited by Continental involve statutes which have express provisions concerning this retrospective effect. Cf. Pennsylvania Greyhound Lines, Inc. v. Rosenthal, 14 N.J. 372, 102 A.2d 587 (1954). The entirety of Chap. 259 indicates a contrary intention. It would have been easy for the Legislature to use appropriate words to indicate a purpose to make the right of contribution effective as to judgments already rendered, if it had desired to do so. In view of the prior rule of substantive law concerning contribution between joint tort feasors and the rule of construction that a statute will not be considered retroactive unless the legislative intent to make it so is clear, and because of the terms of the statute itself, we do not think that Continental can base a right to contribution against Cox and Partee upon Chap. 259, where the statute was passed after the judgments of the circuit court were rendered in 1951. Nor is the judgment which is referred to in the statute the judgment of the Supreme Court affirming the circuit court. Clearly the judgments of the trial court were the effective adjudications of plaintiffs' rights. (Hn 7) Their effect was suspended during appeal with supersedeas to the Supreme Court, but our judgment simply affirmed the validity of the judgments of the circuit court. Early v. Board of Supervisors, 182 Miss. 636, 181 So. 132 (1938); Stone v. McKay Plumbing Co., 200 Miss. 792, 30 So.2d 91 (1947).
Appellee Continental argues that the date which determines the application of Chap. 259 is when Continental paid the judgments; that each of the defendants was responsible for the full amount of the judgments, and had no vested right in any wish or desire that the sheriff would levy on only one of them, in view of Code Sec. 1901; that the statute was passed about eighteen months before the payment of the judgments, and its application here is not prospective, because it came into operation only upon the payment. Although there is some authority to support this argument as a matter of general law, we are here asked to apply a Mississippi statute, with its own particular terms.
(Hn 8) The problem is to ascertain the Legislature's intent. The act provides that in suits where judgment is rendered against joint tort feasors, and where one of them has paid more than his pro rata share, then the other defendants are liable for their pro rata shares. The rendition of a judgment against the joint tort feasors is a condition precedent to liabilities between them, of a significance equal to that of subsequent payment by one of them. We are not willing to say that the incident of payment alone is the determining factor under the statute. A judgment must also have been rendered, subsequent to the effective date of the statute. We do not consider here whether the accident must have occurred after the statute went into effect, since that is not necessary to this decision. The cross appeal and motion to dismiss it become immaterial in view of the disposition of this case. The two final judgments of the circuit court, in the causes consolidated on this appeal, in favor of Continental, are reversed, and judgment is rendered here for appellants Cox and Partee.
Reversed and judgment rendered for appellants.
Roberds, P.J., and Hall, Lee, Kyle and Gillespie, JJ., concur.