was liable to an injured employee only on the basis of negligence. The plaintiff had to establish negligence, and the employer could rely on contributory negligence and other common law defenses to meet the claim of the injured worker. Thus many industrial accidents resulted in injuries that were not redressed. Numerous individual calamities created a crying social problem.
Beginning with the second decade of this century, the various States and the Federal Government revolutionized the system of compensating injured employees, by substituting a system whereby the employer guarantees compensation for every injury sustained by an employee in the course of his employment and arising out of the employment. Fault is no longer the basis for recovery of compensation. The mere fact of injury, under the new system, gives rise to a duty to pay compensation. In exchange, however, the amount of compensation is fixed by statute, on a moderate scale, and the employer is absolved from any further liability. If the injury is caused by the negligence of a third party, the act preserves the right of the employee to sue the latter.
If the employer were made liable to contribution to the third party, if both the third party and the employer were negligent, the result would be to deprive the employer of a part of the protection that the statute extends to him. A consequence would be to create a serious breach in the wall with which the act surrounds the employer in exchange for his guarantee of compensation to any of his employees injured in an industrial accident, irrespective of the employer's fault. Moreover, to allow contribution in such cases would lend to an incongruous result. If the employer alone is guilty of negligence, no liability in tort attaches to him, if he carries workmen's compensation insurance. If, however, another person is also guilty of negligence that contributes to the injury, the employer would be required to pay a proportionate share of damages recovered in a tort action. There is no logical basis for such a distinction. It would make the employer liable if he is negligent along with one or more other persons, but free of liability if he alone is negligent.
My decision in the Liberty Mutual Insurance Co. case was followed in this district by Judge Keech, in Coates v. Potomac Electric Power Co., D.C., 95 F.Supp. 779. It was likewise followed by Judge Tamm, in an unreported decision. The Court of Appeals for the Second Circuit reached the same conclusion in American Mutual Liability Ins. Co. v. Matthews, 182 F.2d 322, at page 324. There the court made the following statement:
'To impose a non-contractual 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.'
The same principle was applied more recently in the Second Circuit, in an opinion written by Judge Learned Hand, Slattery v. Marra Bros., 186 F.2d 134, 138.
The Court of Appeals of Maryland, likewise, reached the same result, Standard Wholesale Phosphate & Acid Works v. Rukert Terminals Corp., 193 Md. 20, 65 A.2d 304.
It is said that the Court of Appeals for the Ninth Circuit arrived at the opposite result. Even if that were the case, I would be inclined to adhere to my prior view and to follow the Second Circuit and the State of Maryland on this point. As a matter of fact, however, I do not read the case cited, United States v. Rothschild International Stevedoring Co., 183 F.2d 181, as placing the Ninth Circuit in opposition to the Second. In that case the point here raised was not passed upon. In fact it was not even mentioned. The case was decided on an entirely different issue.
There is no decision on this point by the Court of Appeals for the District of Columbia. True, in Hitaffer v. Argonne Co., 87 U.S.App.D.C. 57, 183 F.2d 811, 23 A.L.R.2d 1366, a case which deals with an entirely different subject-matter, the question here involved was mentioned in passing. The remark was obviously obiter and cannot be considered as an authority. Moreover, the court cites a district court decision from the Second Circuit which was later overruled by the decisions of the Court of Appeals for the Second Circuit to which reference has been made.
This Court, therefore, reaches the conclusion that an exception should be carved out from the general rule permitting contribution as between joint tort-feasors, to the extent of exempting from the obligation to make any employer who carries workmen's compensation insurance which covers the injured party and the accident out of which the injury arose.
In view of these considerations, the Court will grant the motion of the third-party defendants for a directed verdict.
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