Ferguson v. Davis , 48 Del. 299 ( 1954 )

102 A.2d 707 (1954)

FERGUSON
v.
DAVIS.
FERGUSON, Third-Party Defendant.

Civ. A. No. 575.

Superior Court of Delaware, New Castle.

February 4, 1954.

Januar D. Bove, Jr. (of Connolly, Cooch & Bove), Wilmington, for plaintiff.

Albert L. Simon and Stephen E. Hamilton, Jr., Wilmington, for defendant and third-party plaintiff.

Stewart Lynch, Wilmington, for third-party defendant.

HERRMANN, Judge.

This is an action for damages resulting from an automobile accident. The complaint charges that the defendant negligently drove her automobile into an automobile owned by the plaintiff and operated by the plaintiff's husband. The defendant filed a third-party complaint against the plaintiff's husband alleging his negligence and seeking contribution from him as a joint tort-feasor. The plaintiff's husband moves to dismiss the third-party complaint on the ground that it fails to state a claim upon which relief can be granted.

The recent case of Lutz v. Boltz, Del.Super., 100 A.2d 647, 648, disposes of the question here presented. After discussing our Uniform Contribution Among Tortfeasors Act, 10 Del.C. § 6301 et seq., Judge Carey there stated:

"It is clear from the very language of the statute itself that it has no application unless there is a ``common liability' to the injured person. This liability may be joint or several, but there is no right to contribution unless the injured person has a possible remedy against two or more persons."

Since a wife may not sue her husband at law in this State, the plaintiff in this case has no possible remedy against her husband for damages arising from his negligence. See Plotkin v. Plotkin, 2 W.W. Harr. 455, 125 A. 455. Hence, to permit a third-party proceeding for contribution against the husband, as a joint tort-feasor, would be to render him liable indirectly upon a claim for which he may not be held liable directly. Common liability, not concurring negligences, is the sine qua non for the invocation of the Uniform Contribution Act. Since there is no possible liability or right of action as between the third-party defendant and the plaintiff, his wife, it is held that the third-party plaintiff could have no right of contribution from the third-party defendant. See Yellow Cab. Co. v. Dreslin, 86 App.D.C. 327, 181 F.2d 626, 19 A.L.R. 2d 1003 et seq.; Guerriero v. U-Drive-It Co. of New Jersey, 22 N.J. Super. 588, 92 A.2d 140; American Auto Ins. Co. v. Molling, Minn., 57 N.W.2d 847.

The third-party plaintiff attempts to distinguish the Lutz case on the ground that a husband-wife relationship was not involved in that case. The principles announced in the Lutz case are controlling here notwithstanding the difference in the facts.

The third-party plaintiff also urges the adoption of the rationale of Fisher v. Diehl, 156 Pa.Super. 476, 40 A.2d 912. That case is not apposite because it was not decided under the Uniform Contribution Act.

The motion to dismiss the third-party complaint will be granted.