and introduce evidence that the defective equipment was owned by Anesthesiologists who had the duty to maintain it in operable condition. By that late date many decisions had been made based on the pleadings, discovery and pre-trial conferences. Among such decisions was that of plaintiffs to settle with Associated Anesthesiologists. While the amount of the settlement was substantial it remains open to question whether plaintiffs would have been satisfied with the amount paid if they had known of Hospital's later developed position concerning the defective equipment. The settlement on behalf of the infant plaintiff had to be and was approved by the Court. Whether the Court would have felt the settlement adequate if it had reason to think that the defective equipment was that of Associated Anesthesiologists must remain an unanswered question.
The "Court adheres to these rulings" of exclusion and recognizes the validity of Hospital's post-trial brief assertion that "there is no basis in the record on which the Court could find for the Hospital on its Cross-Claim against the anesthesia group."
The cross-claim is dismissed.
Hakim's Cross-Claim Against Hospital Associated Anesthesiologists' Cross-Claim Against Hospital
Hakim cross-claimed against Hospital demanding indemnity (exoneration) or contribution for any sums awarded to plaintiffs against Hakim together with interest and costs. Denying that any defendant was negligent, Hakim alleged that if any negligence was found it resulted from, among other things, the negligent acts of Hospital's employees and its malfunctioning or inoperative equipment.
Before trial Hakim settled with plaintiff and it is the amount of that settlement he seeks to recover from Hospital.
Associated Anesthesiologists by its cross-claim asserted a right to recover by way of indemnity (exoneration) or contribution any sums awarded to plaintiffs against them together with interest and costs. They denied any negligence on the part of any defendants but asserted that if there was any negligence found it resulted, among other things, from Hospital employees' mismanagement of the patient or improper maintenance of the equipment.
As in the case of Hakim, Associated Anesthesiologists settled with plaintiffs before trial and they seek to recover from Hospital the amount they paid in settlement.
Since George's Radio v. Capital Transit Co., 75 U.S. App. D.C. 187, 126 F.2d 219 (1942), there has been in effect in the District of Columbia the rule "that when the parties are not intentional and willful wrongdoers, but are made so by legal inference or intendment, contribution may be enforced." 75 U.S. App. D.C. at 191, 126 F.2d at 223. There the defendant parties were made wrongdoers under the doctrine of respondeat superior as they were respectively the employers of the negligent operators of motor vehicles. In Knell v. Feltman, 85 U.S. App. D.C. 22, 174 F.2d 662 (1949) the rule was extended to cover unintentionally negligent tortfeasors even though they personally, and not vicariously, committed the tortious acts.
Indemnification is also a form of relief available in the District of Columbia. Washington Gas Co. v. District of Columbia, 161 U.S. 316, 16 S. Ct. 564, 40 L. Ed. 712 (1896), Moses-Ecco Company v. Roscoe-Ajax Corporation, 115 U.S. App. D.C. 366, 320 F.2d 685 (1963), Coates v. Potomac Electric Power Co., 96 F. Supp. 1019 (D.D.C. 1951), Aetna Casualty and Surety Company v. Porter, 181 F. Supp. 81 (D.D.C. 1960).
The distinction between contribution and indemnity was with great clarity explained by the late Judge Holtzoff of this Court in Nordstrom v. District of Columbia, 213 F. Supp. 315 (D.D.C. 1963), rev'd on other grounds sub nom. District of Columbia v. Nordstrom, 117 U.S. App. D.C. 165, 327 F.2d 863 (1963). At page 318, 213 F. Supp., Judge Holtzoff stated:
In passing on the cross-claim it is necessary to distinguish between contribution and indemnity. The former apportions damages as between joint tortfeasors on an equal basis in proportion to their number. If contribution is permitted, any one of them who pays more than his share of the damages, is entitled to be reimbursed proportionately by his fellow tortfeasors. On the other hand, indemnity is a right to complete reimbursement on the part of one tort-feasor as against another for the entire amount that the former has been compelled to pay. It is based on a contractual obligation implied in law or a quasi-contract. The rigid doctrine of the common law which barred contribution as between joint tortfeasors, has been abandoned or at least modified in a number of progressive jurisdictions. Thus in the District of Columbia Circuit, the old rule was discarded and a doctrine providing for contribution between joint tortfeasors was adopted by judicial decisions, George's Radio v. Capital Transit Co., 75 U.S. App. D.C. 187, 126 F.2d 219.
In discussing the subject of indemnity, it seems desirable to classify joint tortfeasors into several categories. First, in some instances joint tortfeasors commit one act of negligence in concert. Naturally, no right of indemnity exists as among them. The second class comprises situations in which the joint tortfeasors are guilty of separate tortious acts, either simultaneously or in chronological sequence, the several acts in combination constituting proximate causes and leading to the plaintiff's injuries. This class may, in turn, be subdivided into two groups: cases in which the negligence of each tort-feasor equally contributes to the final result, where also there is no basis or reason for indemnity; and, second, cases in which the negligence of one tort-feasor is primary or active, and that of the other is secondary or passive. It has been held that under such circumstances the latter is entitled to indemnity from the former.