Capitol Chevrolet Co. v. Lawrence Warehouse Co.

(concurring).

I concur in Judge Healy’s opinion. I add a few remarks concerning the dissent.

Judge Chambers invokes the rule that one who has been guilty of a tort concurrently or jointly with another cannot recover contribution or indemnity from the latter. Adams v. White Bus Line, 184 Cal. 710 , 195 P. 389 . In his view Lawrence Warehouse Company was a joint or concurrent tort-feasor by reason of the negligence of the watchman. This he predicates upon a further point, namely, that although the Burns Agency was an independent contractor, yet the character of Lawrence’s duty was such as to make it liable notwithstanding that circumstance. He considers that such was just what the court held in its finding in the original action by Defense Supplies Corporation, that the negligence of Lawrence and Capitol Chevrolet “concurred and joined together to destroy plaintiff’s goods.” Like Judge Healy, I can find no authority for holding Lawrence liable for breach of a non-delegable duty. Even assuming that as against Defense Supplies it would be no defense to Lawrence that Burns Agency was an independent contractor, yet I think the situation is different in this suit in which Lawrence…

(dissenting).

I dissent. While I realize the intend-ments which should be given a trial judge who saw and heard the witnesses, yet I believe here a clearly erroneous result has been reached. Therefore, I would reverse.

Parenthetically, I think I should state, while I respect “law of the case,” we should keep in mind that as a result of Defense Supplies Corp. v. Lawrence Warehouse Co., 336 U.S. 631 , 69 S.Ct. 762 , 93 L.Ed. 931 , our decision in Lawrence Warehouse Co., 164 F.2d 773 , was destroyed entirely and completely. Therefore, we have no “law of the case” remaining from our first decision in 164 F.2d. There this court said, “Now if Capitol was negligent in safeguarding the goods it follows as a matter of course that its dereliction is imputable to its. principal, Lawrence.” 164 F.2d 773, 776 .

The conclusion that imputed negligence was the sole basis of Lawrence’s liability has to be taken from the trial court’s opinion in Defense Supplies Corp. v. Lawrence Warehouse Co., D.C., 67 F. Supp. 16 , rendered some three months before the findings of fact, conclusions of law and judgment were signed and filed *177 on April 15, 1946. To me the findings and judgment holding…

This appeal presents the complex aftermath of litigation in which Defense Supplies Corporation sought to recover damages from Lawrence Warehouse Company, Capitol Chevrolet Company, and two individuals, McGrew and Henry, for the negligent destruction by fire of tires stored in a warehouse. Trial to the court in that litigation resulted in a judgment in favor of Defense Supplies against all defendants save Henry. D.C., 67 F. Supp. 16 . The decision was affirmed by this court. Lawrence Warehouse Co. v. Defense Supplies Corporation, 164 F.2d 773 . The judgment was afterwards ordered vacated on technical grounds, 168 F.2d 199 , but was ultimately reinstated by the Supreme Court, 1949, 336 U.S. 631 , 69 S.Ct. 762 , 93 L.Ed. 931 , which held that the judgment still persisted and could be enforced on suit by the Reconstruction Finance Corporation, to which the assets and rights of Defense Supplies had been transferred by act of Congress. Thereupon Reconstruction Finance sued on the judgment, and on November 20, 1951, the district court granted summary judgment in its favor. Since the history of the earlier litigation is to be found in the reports cited, it is unnecessary at the moment to…