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January 22, 1960

Harry Clifford PORTER, Defendant

The opinion of the court was delivered by: TAMM

This is an action brought by the plaintiff Aetna Casualty and Surety Company, a corporation doing business in the District of Columbia, against the defendant Harry Clifford Porter for recovery of $ 16,459.72. The theory of the plaintiff's case is that it is entitled to indemnity from the alleged actual or 'primarily liable' wrongdoer, namely this defendant, for the money with which this plaintiff parted in settlement of a law suit and for the expenses therein, which suit charged this plaintiff's insured with negligence.

The portion of the policy pertaining to subrogation is as follows:

 '9. In the event of any payment under this policy, the Company shall be subrogated to all the insured's rights of recovery therefor * * *.'


 Codie A. Whitman, on July 12, 1952, 'was strangled to death with a painter's towel in apartment 201 of which she was a tenant in the Ritz Apartments at 1631 Euclid Street, N.W., District of Columbia.' Kendall v. Gore Properties, 98 U.S.App.D.C. 378, 236 F.2d 673, 675. Subsequently, a suit for wrongful death was brought by Mabel D. Kendall, Ancillary Administratrix of the Estate of Codie A. Whitman, deceased, against Gore Properties, Inc. (owner of the Ritz Apartments), American Security and Trust Company, a corporation, and William Freeney Hickey (resident manager of Ritz Apartments). Gore Properties was the corporate employer of Harry C. Porter, and William F. Hickey was the corporate employer's manager.

 The plaintiff in this action had issued a policy of insurance to Gore Properties, Inc., which gave insurance coverage to Gore Properties, Inc., and to William F. Hickey, the resident manager. This plaintiff in this action then properly undertook the defense in the case of Kendall v. Gore Properties, Inc.

 Harry C. Porter was not a party to that suit, but the evidence in that case showed that, '* * * Miss Whitman was strangled and choked to death by an agent of the appellees, Harry Clifford Porter,' Gore Properties, Inc., and William F. Hickey being appellees.

 To briefly summarize the history of that suit, the District Court had directed a verdict at the close of the plaintiff's case in favor of the defendants. On appeal, the Court of Appeals held:

'We find no basis whatever upon which American Security and Trust Company can be said to be liable,'

 but also held that the plaintiff-appellant, Kendall,

'made out, at the very least, a prima facie case of negligence. Thus, it was error for the trial judge to direct a verdict for the appellees.' Kendall v. Gore Properties, Inc., 98 U.S.App.D.C. 378, 236 F.2d 673, 675 and 679,

 and the case was reversed.

 Subsequently, the case was settled by a consent judgment whereby the present plaintiff paid the sum of $ 11,000.00 to the plaintiff Mabel Kendall in the case of Kendall v. Gore Properties, Inc. Prior to this settlement, Aetna Casualty and Surety Company notified Harry C. Porter and his committee of its intentions to effect a settlement and to claim indemnity against Harry C. Porter. The only response to this came from the committee who stated that he would object to any settlement that involved the defendant as there was no trial or proof whatsoever. Then, in the early part of 1957, Aetna Casualty and Surety Company filed this present suit against Harry C. Porter on the theory previously stated.

 One of the witnesses who testified in this hearing for the plaintiff was Sgt. Lionel Coutre of the Homicide Squad. A portion of his testimony on direct examination was that in the course of his investigation of the death of Codie Whitman he talked with the defendant Harry C. Porter who told this witness that he was in Miss Whitman's apartment painting when she came in with groceries. Shortly thereafter, she jumped on his back, and he struggled with her. He also allegedly told Sgt. Coutre that he grabbed a towel, hit the floor and blacked out, and that when he came to, he saw the towel around her neck. Porter allegedly then picked her up, put her in a closet and left the apartment, but returned the next day with a friend of his. Sgt. Coutre said that Porter saw the towel around Miss Whitman's neck while at the morgue, and the towel was identified by the defendant as the one he used to wipe his hands.

 The defendant Porter took the stand and said he did not commit any tort or assault upon Miss Whitman. He also testified that he does not remember making any statement concerning an assault upon her, or being told of his rights, or signing a confession. He also said that other people had been there with him and that when he sometimes left the apartment, he thinks that he left them there.

 This was the only witness presented by the defendant. Other witnesses presented by the plaintiff were Ira C. Everett, Arthur J. Hilland and Justin Edgerton, all of whom testified as to the reasonableness of the amount of the settlement effected in Kendall v. Gore Properties, Inc. and also as to the reasonableness of the attorneys' fees.

 The contentions of the plaintiff can be summarized as follows: Aetna issued insurance to Gore Properties, by reason of which it claims that it became subrogated to the rights of Gore Properties. Gore Properties was sued for a wrongful death committed by one of its employees, Harry C. Porter. Aetna defended this suit for Gore Properties and one of its employees, William F. Hickey, and paid the consent judgment, expenses and attorneys' fees. Although Gore Properties, Inc. was guilty of negligence, this negligence was passive or secondary and the active or primary tortfeasor was Harry C. Porter. Therefore, since Gore Properties, Inc., could claim indemnity against Harry C. Porter, Aetna can do so and thus should be given judgment for $ 16,459.72, the amount it has expended in the defense of the suit, Kendall v. Gore Properties, Inc.

 The authorities and argument of the plaintiff may be outlined in the following manner and are treated in this order:

 1. General principles of indemnity.

 A. Right to indemnity recognized in District of Columbia.

 B. Primary liability.

 2. Fact that the case, Kendall v. Gore Properties, Inc., was not tried should not work as a ...

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