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January 29, 1953

ERIE R. CO. et al.

The opinion of the court was delivered by: HARTSHORNE

A jury trial lasting over two weeks, and consisting, in fact, of two cases, the first a negligence case by Flusk, an Erie Railroad employee, against both Erie and General Motors Corporation, the other an indemnity case by Erie Railroad against General Motors, resulted in a general verdict for plaintiff in the negligence case in the amount of $ 45,000. It also resulted in a special verdict on the cross-claim in the indemnity case of Erie against General Motors, upon the basis of which special verdict the court entered judgment on both counts, in favor of defendant General Motors. No attack is made on the judgment for General Motors on this cross-claim.

 Are The Verdicts Inconsistent?

 Because of the obvious difficulty attendant upon any attempt to ascertain the true intent of a jury in using lay words to reach legal conclusions, the rule must be borne in mind that every reasonable intendment must be indulged in to support a verdict; in other words, the two findings must be in irreconcilable conflict before they may be set aside. Theurer v. Holland Furnace Company, 10 Cir., 1941, 124 F.2d 494; Bass v. Dehner, 10 Cir., 1939, 103 F.2d 28, 34; 5 Moore's Federal Practice, Sec. 49.04, p. 2211 (2nd ed. 1951). The above authorities, in fact the authorities generally, apply this rule to cases of alleged inconsistencies in special verdicts as they arise in a single case. F.R.C.P. Rule 49(a), 28 U.S.C.A.; Feldmann v. Connecticut Mutual Life, 8 Cir., 1944, 142 F.2d 628, or to alleged inconsistencies between a general verdict and the answers to written interrogatories of fact basic to such general verdict. F.R.C.P. Rule 49(b). Doubtless because of the unusual situation here presented, where two actions were tried together, with a general verdict in one and a special verdict in the other, this court has been referred to no precedents directly in point. But it would seem that, if any inconsistency between verdicts in two different cases is to be considered at all, as to which there is question, the strict rule pertinent to a single case should be applied, a fortiori, i. e., that the validity of these two verdicts in these separate cases should be upheld unless they are irreconcilably in conflict. Both to determine if these verdicts in these two cases may be considered together at all, and next to determine if they are in irreconcilable conflict, we must consider the nature of these two cases.

 (1) The Flusk negligence case.

 Here Flusk, an employee of the Erie Railroad, sued his employer, the Erie, under the Federal Employers' Liability Act, 35 Stat. 65, 45 U.S.C.A. § 51 et seq., for negligence in several aspects, including: a) negligent handling of its crane in unloading the crates of General Motors carried on the Erie freight car, whereby Flusk was injured; b) failure of Erie to give Flusk a reasonably safe place to work since the General Motors' crates were defective and unfit for Erie's practices in unloading by crane. Flusk, in the same action, but in a separate count, also sued General Motors for common law negligence, on the ground, among others, that the General Motors' crates were defective and unfit for the crane unloading practice of Erie. Flusk also sued both the Erie and General Motors, as joint tort-feasors.

 (2) The cross-claim by Erie against General Motors.

 Here Erie sought, not contribution from a joint tort-feasor, under the New Jersey statute, but total indemnity by one joint tort-feasor to another, a relatively unusual doctrine, based upon the following authorities:

 Restatement Restitution, Secs. 93, 95 (1936).

 Boston Woven-Hose & Rubber Company v. Kendall, 1901, 178 Mass. 232, 59 N.E. 657, 51 L.R.A. 781; United States Casualty Co. v. Hercules Powder Co., 1950, 4 N.J. 157, 72 A.2d 190; Popkin Bros., Inc. v. Volk's Tire Co., 1941, 23 A.2d 162, 20 N.J. Misc. 1; Middlesboro Home Telephone Co. v. Louisville & N. R. Co., 1926, 214 Ky. 822, 284 S.W. 104; Seaboard Airline Railway Co. v. American District Electric Protective Co., 1932, 106 Fla. 330, 143 So. 316; Central of Georgia Railway Co. v. Macon Railway & Light Co., 1913, 140 Ga. 309, 78 S.E. 931; Gulf, Mobile & Ohio Railway Co. v. Arthur Dixon Transfer Co., 1951, 343 Ill.App. 148, 98 N.E.2d 783. Also involved were the principles of Szabo v. Pennsylvania Railroad, 1945, 132 N.J.L. 331, 40 A.2d 562 applicable to the employer's payment of emergency medical expenses for an injured employee.

 To be more specific, if the negligence of Erie consisted solely in the negligent handling of its crane, then Erie's negligence would be primary, no matter whether General Motors were negligent or not in some other aspect, and Erie could not have indemnity. But if, on the other hand, General Motors had built its crate defectively, or so that it was unfit to withstand the anticipated handling of such crate by Erie, to the danger of Erie's personnel, then the negligence of General Motors would be primary in that regard. And if Erie were found negligent, solely because it failed to give Flusk a reasonably safe place to work, in that he was faced with this General Motors crate, unfit to be handled by Erie in an otherwise proper manner, then Erie's negligence would be derivative. Under the above authorities, the result would be that, if the negligence of Erie was but derivative, while the negligence of General Motors was primary, the primary joint tort-feasor, General Motors, would be required to indemnify completely the derivative joint tort-feasor, Erie, who perchance had been held responsible to Flusk solely because of the primary negligence of General Motors. But, of course, the charge to the jury as to this, in itself rather unusual doctrine, would have to be complicated by a further charge covering the possibility that Erie, in addition to being a derivative tort-feasor, was also a primary tort-feasor, for another reason, in which event no indemnity would lie. Further, the charge would have to cover the possibility that while there might be primary negligence as to General Motors as above, and derivative negligence as to Erie, as above, there might also be contributory negligence on the part of Flusk, which would, as above, bar a verdict for Flusk against General Motors in the negligence case, but not bar a verdict against Erie in that case. Of course, if such were the situation, Erie could not ask indemnity from General Motors, on the above indemnity rule, since the rights against General Motors of Erie, the tort-feasor, could hardly rise higher than the rights against General Motors of Flusk, the person against whom Erie had committed the tort. Spaulding v. Parry Navigation Co., 2 Cir., 1951, 187 F.2d 257, certiorari denied Parry Navigation Co. v. Todd Shipyards Corp., 342 U.S. 918, 72 S. Ct. 362, 96 L. Ed. 686; Slattery v. Marra Bros., 2 Cir., 1951, 186 F.2d 134.

 Faced with all these principles which would have to be explained to the jury, were general verdicts to be asked of them in both these cases, the court concluded that any such complex general charge would inevitably give the jurors such an attack of intellectual indigestion that their verdicts could not possibly be based understandingly on the principles of law involved, and that injustice was accordingly only too apt to result. *fn1" On the other hand, since the very same evidence as to liability would be called for in both cases, it did not seem fair or wise to try this lengthy case twice. Therefore, after conferring with all counsel, the court framed for the Flusk negligence case a form of general verdict in the alternative, depending upon whether or not Flusk recovered, and if so, from whom, and in what amount. In the cross-claim, a form of special verdict was framed in the alternative, directed to the bases of the negligence of Erie and General Motors, respectively. The answers to these would thus settle the primary issues there, i. e., whether or not General Motors' negligence, if found, was solely primary, and Erie's negligence, if found, was, on the other hand, solely derivative.

 Accordingly, at the trial the court gave the usual general charge called for in the Flusk negligence case in its two aspects. Then it called the jury's attention to the separate cross-claim for indemnity by Erie against General Motors in both its aspects, adding that, in order to simplify the jury's consideration of the matter, it was not going into the complex questions raised in such cross-claim, but was submitting a form for the jury's entering a written special verdict in regard to such cross-claim, as well as a general verdict in the negligence case. As to this ...

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