Page:Harvard Law Review Volume 12.djvu/213

CONTRIBUTION BETWEEN PERSONS. 193 does not apply. In fact, Lord Kenyon in Merryweather v. Nixan clearly intimated that such a bond would be upheld. But if the purpose of such a promise of indemnity were treated as illegal, — if the tort in such a case were held an intentional wrong, — the courts will not enforce the contract.^ All such contracts of indemnity against the possible conse- quences of negligent torts will be void and not enforceable in the courts if Merryweather v. Nixan were improperly extended to any wrong except intentional or malicious wrong, or crime or misde- meanor. Any other rule than that stated in proposition II. would result in the railroad companies, factory owners, owners of buildings hav- ing elevators, and other persons who have insured against loss by negligence of their employees, finding the doors of the courts closed to them when they bring assumpsit upon their policies to recover over the amounts of judgments against them for torts.^ Proposition II. rests upon both reason and authority, and no single case, it is believed, has been decided against it when the facts are analyzed. To lay down any rule other than that em- 1 Colburn v. Patmore, i C. M. & R. 73 ; s. c. 4 Tyrw. 677 ( 1834) ; Arnold v. Clifford, 2 Sumn. (U. S.) 238 (1835) ; Shackell v. Rosier, 2 Bing. N. Cas. 634; s. c. 29 E. C. L. 438 (1836) ; Atkins v. Johnson, 43 Vt. 78 (1870). 2 The recent decision in the Admiralty Division of the High Court of Justice in The Englishman and the Australia (1895, P. 212) is a case of interest in consider- ing the validity of contracts insuring against the consequences of negligence. The case has been considered unsound by the writers of the most extensive treatise recently published in England on Torts, — Clerk & Lindsell, Torts (2d ed. 1896), 56, note b, — wherein the case is stated not to be distinguishable from the decision of the Lords in Palmer v. Wick & Pulteneytown Steam Shipping Company, L. R. (1894), H. L. (Sc.) A. C. 318. Bruce, J. (1895, ^- 217), said in The Englishman and the Australia: "It was never decided in Merryweather v. Nixan that one wrongdoer could not sue another for contribution, but that an implied promise to indemnify did not arise from the mere fact of payment of the whole of the joint liability by one of several wrongdoers." The decision does not deny the validity of an express contract either for contribu- tion or indemnity in a case of joint negligence, but places the judgment on the ground that in the admiralty and upon the particular facts appearing in that case the law would not imply a contract for indemnity or contribution. It is difficult to understand how the court reached the conclusion that an express contract would be upheld while the law would not imply one, but in any event the case, if deemed in conflict with Palmer v. Wick, where the right to contribution for joint negligence was distinctly recognized by the House of Lords, cannot be regarded as an authority against contri- bution in such a case. The principal importance of the decision of Bruce, J., lies, it is believed, in the distinct statement contained in his opinion to the effect that express contracts — such as the insurance contracts mentioned in the body of this paper — will be upheld by the courts.