the injured person separately and for the full injury. The right to contribution as between joint tort-feasors who are not wilful wrongdoers has been applied by the courts where there is a 'common burden in which the parties stand in equali juri and which in equity and good conscience should be equally borne.' George's Radio v. Capital Transit Co., 75 U.S.App.D.C. 187, 126 F.2d 219, 222. Where the right to contribution has been recognized, the courts have done so because of equitable considerations.
In a case where the employer has paid compensation under the Act, a balancing of the equities does not require allowance of contribution. The Longshoremen's Act substitutes for the employer's common law liability for damages to an injured employee an absolute duty to pay the prescribed compensation, broadening his duty to pay compensation to include injuries for which he otherwise would not be required to respond, although limiting the amounts to be paid to specified sums. Thus, although Sec. 905 in one respect limits the employer's liability, the Act as a whole broadens it. 'To impose a noncontractual duty of contribution on the employer is pro tanto to deprive him of the immunity which the statute grants him in exchange for his absolute, though limited, liability to secure compensation to his employees.' American Mutual Liability Ins. Co. v. Matthews, supra.
The position of an employer who makes compensation payments under the Act is comparable to that of a joint tort-feasor who makes voluntary settlement with the injured party. In such case, as the Court of Appeals held in McKenna v. Austin, supra, the settlement must, in the interest of public policy, be given finality to relieve the settling party from all liability, whether to the injured party directly or indirectly through contribution. Compensation payments by an employer under the Act may be likened to a settlement determined for him by statute in the interest of public policy; and it is no more inequitable to relieve such employer from further liability in the nature of contribution to a third party, than it is to give effect to a settlement by one joint tort-feasor to bar any right of contribution from him to a third party.
Having ruled out Potomac Electric's right to contribution, we come to the question whether the Gas Company owed Potomac Electric some independent duty giving rise to a cause of action for indemnity, which would not be extinguished by Sec. 905 and would warrant continuance of the cross-action against the Gas Company.
It has been stipulated that the Gas Company was under no contractual duty to indemnify Potomac Electric, and the cross-complaint does not allege that Potomac Electric is only secondarily liable, as a result of which it would have a claim in quasi-contract for indemnity. In short, in its cross-claim Potomac Electric has alleged only that Coates was injured due to the negligence of the Gas Company and his own negligence, facts that constitute as to it a complete defense to the original tort action, and has alleged nothing constituting a claim by Potomac Electric against the Gas Company. As stated in Washington Building Realty Corp. v. Peoples Drug Stores, Inc., 82 U.S.App.D.C. 119, 161 F.2d 879, this court cannot read the cross-claim in the light of what may be proved at the trial, but only as it stands upon the record.
Therefore, as Potomac Electric has no right to contribution and has failed to state in its cross-complaint a cause of action for indemnity, the third-party defendant's motion for summary judgment must be granted.
Had Potomac Electric in its cross-complaint claimed, as secondary wrongdoer, indemnity from Washington Gas Light Company on the theory that the latter was the active wrongdoer and was primarily liable for the injury sustained by plaintiff,
then the cross-complaint would have been for breach of an independent duty owed Potomac Electric by the Gas Company and not affected by the provisions of Sec. 905,
namely, an implied agreement of indemnity. The fact that Potomac Electric's damages would be measured by the amount of the recovery by Coates, would no more affect the independent character of the Gas Company's obligation to Potomac Electric than if Potomac Electric were suing on a contract of indemnity.
Counsel will prepare an order granting the third-party defendant's motion for summary judgment, without prejudice to the third-party plaintiff's right to amend its cross-complaint.