CONCURRING OPINION. I do not concur in paragraph one of the principal opinion. It rules that the petition did not allege facts sufficient to give jurisdiction in equity, and that there was a misjoinder of actions and parties. The ruling is on the theory that contribution between *Page 714 joint tortfeasors is a right created by statute, which statute does not authorize a suit in equity but only authorizes an action at law. Is this a proper construction? The statute first appeared in Revised Statutes 1855, page 649, and provides as follows:
"Defendants in a judgment founded on an action for the redress of a private wrong shall be subject to contribution, and all other consequences of such judgment, in the same manner and tothe same extent as defendants in a judgment in an action foundedon contract." [Sec. 3268, R.S. 1929.]
At common law it is the general rule that there is no contribution between joint tortfeasors. Under said law it is against public policy to adjust equities between wrongdoers. The court leaves them in the position where it finds them. [13 C.J. 828-830, secs. 18-21; 6 R.C.L. 1054, sec. 17; 5 Pomeroy's Equity, 5173, sec. 2339; Flenner v. Southwest Missouri Railroad Co., 290 S.W. 98; Kilroy v. St. Louis, 242 Mo. 79, 145 S.W. 769.]
It should be noted that the statute neither makes provision concerning the form of the action nor provides whether the right granted may be enforced at law or in equity. It does provide that joint tortfeasors against whom a judgment has been rendered "shall be subject to contribution . . . in the same manner andto the same extent as defendants in a judgment founded oncontract." This means that to find the remedy available to enforce contribution among joint tortfeasors, we must find what remedy there was for contribution between defendants in a judgment based on contract. It means that tortfeasors have exactly the same remedies to enforce contribution as in cases of contribution based on contract. The statute is not susceptible of any other interpretation.
[2] Contribution originated in equity, was enforceable only in equity and was based upon the equitable principle that "equality is equity." It was the rule that as between parties under an equal obligation one of them should not be obliged to bear a common burden and thus allow the others to escape said burden. [13 C.J. 821, sec. 2, p. 832, sec. 26; 6 R.C.L. 1059, sec. 19; 5 Pomeroy's Equity, 5169, sec. 2338; 1 Pomeroy's Equity, 763, secs. 406-07; 2 Story's Equity, 26-82, secs. 666-670.]
Finally the courts recognized this equitable obligation between parties as ground for holding that there was an implied contract between them to pay their share and ruled that the right of contribution might be enforced by the action of assumpsit. [13 C.J. 832, sec. 26; 6 R.C.L. 1059, sec. 19; 2 Story's Equity 81, sec. 670.]
A legal action is a separate suit against each of those liable for an aliquot part of the loss. [5 Pomeroy's Equity, 5170, sec. 2338.] Being a suit on an implied promise to pay a definite share, the legal action was a separate action against each party liable and several *Page 715 parties liable to contribution for the same judgment could not be joined as defendants in an action at law. [6 R.C.L. 1061, sec. 21; 13 C.J. 834, sec. 30.] Statutory remedies to enforce contribution by motion in the original case instead of by a separate suit have been provided in case of sureties. [Secs. 2941-2942, R.S. 1929.] However, the fact that there are remedies recognized at law or provided by statute does not oust the jurisdiction of equity or prevent one entitled to contribution from enforcing his right by an action in equity in which he may join as defendants all parties claimed to be liable. Furthermore, it would seem that whenever more than one person may be liable (that is, where a judgment has been rendered against more than two defendants) the equitable remedy is superior to that at law. [13 C.J. 833, sec. 26, p. 834, sec. 30; 6 R.C.L., p. 1059, sec. 19, p. 1061, sec. 21; 5 Pomeroy's Equity, 5170, sec. 2338; 5 Pomeroy's Equity, 3362, sec. 1418, and note; 1 Pomeroy's Equity, 517, sec. 278; 2 Story's Equity, 84, sec. 673; Dysart v. Crow,170 Mo. 275, 70 S.W. 689.]
The statement of Story, in the section above cited, follows:
"But still the jurisdiction now assumed in Courts of Law upon this subject in no manner affects that originally and intrinsically belonging to equity. Indeed there are many cases in which the relief is more complete and effectual in equity than it can be at law; as for instance where an account and discovery are wanted, or where there are numerous parties in interest which would occasion a multiplicity of suits. In some cases the remedy at law is now utterly inadequate. As if there are several sureties and one is insolvent and another pays the debt, he can at law recover from the other solvent sureties only the same share as he could if all were solvent. Thus if there are four sureties and one is insolvent, a solvent surety who pays the whole debt can recover only one-fourth part thereof (and not a third part) against the other two solvent sureties. But in a Court of Equity he will be entitled to recover one-third of the debt against each of them; for in equity the insolvent's share is apportioned among all the other solvent sureties."
There is no reason why these principles do not apply between joint tortfeasors to enforce contribution given by statute. Of course, where the judgment is against only two defendants, an action at law in the nature of assumpsit is a full, complete and adequate remedy, because if there is liability, it is for half the amount of the judgment paid by the codefendant. However, in a case where contribution is sought from more than one party, the remedy at law may not be full, complete and adequate. In such cases it will avoid a multiplicity of suits, and while that alone is not a ground for equitable jurisdiction, the fact that the remedy at law is not a full, complete and adequate remedy always is a ground for such jurisdiction. *Page 716 This court, in one of the early actions under our statute, recognized the propriety of an action in equity by one tortfeasor against several others, against whom judgment had been jointly remedied. [Brewster v. Gauss, 37 Mo. 518.] Moreover, as stated in Dysart v. Crow, supra, whenever an action in equity has been recognized as a proper remedy to enforce a certain right, other methods of enforcing the same right at law or under statute are only concurrent remedies, and it would be "difficult to maintain that a court of law by its own act could oust or repeal a jurisdiction already rightfully attached in equity." The same would be true of a statute which does not specifically prohibit or exclude equitable jurisdiction but gives to a new class the rights (which would certainly include the remedies) already recognized as belonging to another class. Indeed, if the original jurisdiction to enforce contribution was in equity, should it be necessary to state any other ground for jurisdiction than merely to state facts showing the right to contribution against more than one other person? In other words, unless the pleadings clearly show no situation requiring equitable relief, is not an action for contribution always an equitable action? I think so because originally it could not be anything else.
Of course, the nature of the action may be determined from all the pleadings. In the instant case it is not merely alleged that plaintiff has no adequate remedy at law. On the contrary, the petition set forth the petition and answers in the original case; alleged that judgment was entered jointly against plaintiff and defendants herein, and that plaintiff paid the judgment. It then prayed for judgment against each of the defendants herein for one-third of the amount paid in satisfaction of the judgment.
One of the defendants herein alleged that it was not liable for contribution under the provisions of a lease which it claimed required indemnity of plaintiff, and further alleged that plaintiff was liable for said defendant's expenses in defending the original suit.
The other defendant alleged that it was not liable for contribution for the reason that plaintiff was primarily liable for the injury which was the foundation of the original suit. I think the facts alleged invoke principles of equity; that separate causes of action would not afford plaintiff a full, complete and adequate remedy, and that it was entitled to have these issues determined in one action.
For these reasons I concur in the result. Frank and Leedy,JJ., concur. *Page 717