As between parties who have committed acts which they knew or ought to have known were wrongful, the rule is uniformly and unhesitatingly applied.3
1 8 Term R. 186. The exception was foreshadowed in Battersey's case, 1623, Winch 48.
2 In Bailey v. Bussing, 1859, 28 Conn. 455, 459, Ellsworth, J., said: "Indeed we think this maxim too much broken in upon at this day to be called with propriety a rule of law, so many are the exceptions to it."
3 Arnold v. Clifford, 1835, 2 Sumn. (U. S. C. C.) 238; Fed. Cas., No. 555, (libel); Wanack v. Michels, 1905, 215 111. 87; 74 N. E. 84, (statutory liability for injury resulting from sale of liquor); Sutton v. Morris, 1898, 102 Ky. 611; 19 Ky. Law Rep. 1654; 44 S. W. 127, (wrongful cutting and carrying away timber); Avery v. Central Bank, 1909, 221 Mo. 71; 119 S. W. 1106, (misappropriation of bank's funds); Johnson v. Torpy, 1892, 35 Neb. 604; 53 N. W. 575; 37 Am. St. Rep. 447, (sale of liquor to known habitual drunkard); Sharp v. Call, 1903, 69 Neb. 72; 95 N. W. 16; 96 N. W. 1004, (misappropriation of corporate funds); Bigelow v. Old Dominion, etc., Co., 1908, 74 N. J. Eq. 457; 71 Atl. 153, 176, (plaintiff, a corporation promoter, had been compelled to account for secret profit); Peck v. Ellis, 1816, 2 Johns. Ch. (N. Y.) 131, (fraudulent conversion of timber); Miller v. Fenton, 1844, 11 Paige (N. Y.) 18, (misappropriation of bank's funds); Davis v. Gelhaus, 1886, 44 Ohio St. 69; 4 N. E. 593, (embezzlement); Fakes v. Price, 1907, 18 Okl. 413; 89 Pac. 1123, (judgment for fraud in management of corporation: court allows contribution as to costs); Boyer v. Bolender, 1889, 129 Pa. St. 324; 18 Atl. 127 ; 15 Am. St. Rep. 723, (misappropriation of corporate funds); Rhea v. White, 1859, 3 Head (40 Tenn.) 121, (conversion of slaves); Spaulding v. Oakes, 1869, 42 Vt. 343, (failure to restrain animal known to be vicious: evidently regarded as equivalent to intentional wrong); Atkins v. Johnson, 1870, 43 Vt. 78; 5 Am. Rep. 260, (libel). And see Hunt v. Lane, 1857, 9 Ind. 248, and Anderson v. Saylors, 1859, 3 Head (40 Tenn.) 551, in which the nature of the act does not appear. But see Fort Scott v. Kansas City, etc., R. Co., 1903, 66 Kan. 610; 72 Pac. 238, in which a recovery was allowed under a statute authorizing contribution between joint judgment debtors.
As between parties who are legally responsible for a wrong, not because they authorized or actually participated in its commission, but because of their relation to the actual wrongdoer, the rule is generally held inapplicable, and contribution is enforced.1 The same is true when, although the parties authorized or actually participated in such an infringement of another's legal rights as constitutes a tort, they acted in good faith and are not chargeable with knowledge that their action was wrongful.2
1 Wooley v. Batte, 1826, 2 Car. & P. 417, (negligence of servant); Pearson v. Skelton, 1836, 1 Mees. & Wels. 504, (negligence of servant); Ankeny v. Moffett, 1887, 37 Minn. 109; 33 N. W. 320, (injury resulting from fall of building due to negligence of owners or their agents); Horbach's Admrs. v. Elder, 1851, 18 Pa. St. 33, (negligence of servant). See Bailey v. Bussing, 1859, 28 Conn. 455, 459, in which Ellsworth, J., said: "We must look for personal participation, personal culpability, personal knowledge. If we do not find these circumstances, but perceive only a liablity in the eye of the law, growing out of a mere relation to the perpetrator of the wrong, the maxim of law that there is no contribution among wrongdoers is not to be applied.",
2 Vandiver v. Pollak, 1893, 97 Ala. 467; 12 So. 473; 19 L. R. A. 628, (levy on goods); Farwell v. Becker, 1889, 129 111. 261; 21 N. E. 792; 6 L. R. A. 400; 16 Am. St. Rep. 267, (attachment of goods); Jacobs v. Pollard, 1852, 10 Cush. (Mass.) 287; 57 Am. Dec. 105, (seizure of cattle by plaintiff and sale by defendant); Smith v. Ayrault, 1888, 71 Mich. 475; 39 N. W. 724; 1 L. R. A. 311, (infringement of patent); First Nat. Bank v. Avery Planter Co., 1903, 69 Neb. 329; 95 N. W. 622; 111 Am. St. Rep. 541; Schappel v. First Nat. Bank, 1908, 80 Neb. 708; 115 N. W. 317, (attachment); Acheson v. Miller, 1853, 2 Ohio St. 203; 59 Am. Dec. 663, (levy on goods). See Torpy v. Johnson, 1895, 43 Neb. 882; 62 N. W. 253, (sale of liquor to habitual drunkard).
Whether the rule applies to cases of mere negligence, is not settled. The House of Lords, in an interesting Scotch case, enforced contribution:
Palmer v. Wick & Pulteneytown Steam Shipping Co.,  A. C. 318: Palmer, a stevedore, was engaged in discharging pig iron from the shipping company's vessel when one of his workmen was killed by the fall of a block, part of the ship's tackle. The tackle was defective and was negligently used by the appellant. A joint judgment against Palmer and the company was paid in full by the latter, which then brought this action for contribution. Lord Herschell, L.C. (p. 323): "It is not necessary in this appeal to decide whether there can be any right to contribution in the case of a delict proper when the liability has arisen from a conscious and therefore moral wrong, nor even whether in every case of quasi-delict a delinquent may obtain relief against his co-delinquent, though I see, as at present advised, no reason to differ from the opinion, which I gather my noble and learned friend Lord Watson holds, that such a right may exist. . . .
"Much reliance was placed by the learned counsel for the appellant upon the judgment in the English case of Merry-weatlier v. Nixan [8 Term R. 186]. The reasons to be found in Lord Kenyon's judgment, so far as reported, are somewhat meager, and the statement of the facts of the case not less so. It is now too late to question that decision in this country; but when I am asked to hold it to be part of the law of Scotland, I am bound to say that it does not appear to me to be founded on any principle of justice or equity, or even of public policy, which justifies its extension to the jurisprudence of other countries. There has certainly been a tendency to limit its application, even in England. . . . The doctrine that one tort-feasor cannot recover from another is inapplicable to a case like that now under consideration."l
1But see The Englishman and The Australia,  P. 212, in which Bruce, J., said (p. 218): "I do not think that the observations [of Lord Herschell] were intended to mean that, wherever the act done by joint tort-feasors was not in itself unlawful, an indemnity is to be implied from the mere fact that one tort-feasor has paid, under compulsion, the whole damages arising from the tort."
The courts of several States, also, have enforced contribution.1 On the other hand, there are a number of authorities which favor the view that cases of negligence fall within the rule of no contribution, one of the most important being a decision of the United States Supreme Court:
Union Stock Yards Co. v. Chicago, etc., R. Co., 1905, 196 U. S. 217: 25 S. Ct. 226: Action for indemnity. The defendant had delivered to the plaintiff a defective car, the defect being one that was discoverable upon reasonable inspection. A servant of the plaintiff was injured by reason of the defect and received a judgment against the plaintiff for damages on the ground that his injury was caused by the plaintiff's negligence.
Mr. Justice Day (p. 227): "The case then stands in this wise: The railroad company and the terminal company have been guilty of a like neglect of duty in failing to properly inspect the car before putting it in use by those who might be injured thereby. . . . The terminal company, because of its fault, has been held liable to one sustaining an injury thereby. We do not think the case comes within that exceptional class which permits one wrongdoer who has been mulcted in damages to recover indemnity or contribution from another." 2
1Nickerson v. Wheeler, 1875, 118 Mass. 295, (liability of officers of corporation for neglect to file annual certificate required by law); Ankeny v. Moffett, 1887, 37 Minn. 109; 33 N..W. 320, (liability for injury resulting from fall of building due to negligence of owners or their agents); Armstrong County v. Clarion County, 1870, 66 Pa. St. 218; 5 Am. Rep. 368, (traveler injured as result of negligence of plaintiff and defendant counties in maintenance of bridge); Thweatt 9. Jones, 1823,1 Rand. (Va.) 328; 10 Am. Dec. 538, (tobacco inspectors, by mistake or negligence, delivered receipts and tobacco to person other than owner). And see Mayberry v. Northern Pacific R. Co., 1907, 100 Minn. 79; 110 N. W. 356; Eaton & Prince Co. v. Mississippi, etc., Trust Co., 1906, 123 Mo. App. 117; 100 S. W. 551, (plaintiff's employee fatally injured through negligent running of elevator, while working in building belonging to defendant: statute in Missouri allows contribution between codefendants in tort actions : dictum that contribution would be allowed in this case at common law); Gulf, etc., R. Co. v. Galveston, etc., R. Co., 1892, 83 Tex. 509; 18 S. W. 956.
2 Also : Atlanta, etc., R. Co. v. Southern, etc., Co., 1901,107 Fed. 874, (C. C. Ga.); Forsythe v. Los Angeles R. Co., 1906, 149 Cal. 569; 87 Pac. 24; Central of Georgia R. Co. v. Macon R.& Light Co., 1911, 9 Ga. App. 628; 71 S. E. 1076; Gregg v. Page Belting Co., 1897, 69