DOCSLIB.ORG

The Perjuring Plaintiff

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Perjuring Plaintiff Aerospace Law Committee Committee Perspectives hands remain clean during the litigation. E.g., Addressing Egregious Misconduct Mas v. Coca-Cola Co., 163 F.2d 505, 508 (4th Cir. 1947); Aris-Isotoner Gloves, Inc. v. Berkshire Fashions, Inc., 792 F.Supp. 969, 972 (S.D.N.Y. 1992), aff’d without opinion, 983 F.2d 1048 (2d The Perjuring Cir. 1992). As one trial court explained: “It would be strange if a court of equity had power— because of public policy for its own protec- tion—to throw out a case because it entered Plaintiff with unclean hands and yet would have no power to act if the unconscionable conduct occurred while the case was in court.” Ameri- by Jonathan M. Stern can Ins. Co. v. Lucas, 38 F.Supp. 896, 921 (W.D. Mo. 1940) (“It would be as fantastic as to think that a householder could eject one who en- tered his house to steal the family silverware but could not eject a guest who entered inno- cently but whom he caught later stealing the Without looking at the rulebook, can you absence of express prohibitions of the plain- silverware.”), aff’d sub nom., American Ins. Co. state which Rule or Rules in the Federal Rules tiff’s misconduct in the rules. v. Scheufler, 129 F.2d 143 (8th Cir. 1942). of Civil Procedure prohibit litigants from com- This article addresses the role that the “un- Unclean hands has been invoked to dis- mitting perjury or fabricating evidence? If you clean hands” and “fraud on the court” doc- miss claims or defenses of litigants who have cannot, no need to worry—the question is a trines, supported by Rules 11, 16, 26, 37, and used underhanded means to advance their trick. None of the Federal Rules prohibits such 41 of the Federal Rules of Civil Procedure (or cause. So, for example, in Mas v. Coca-Cola conduct, at least not directly. Surprisingly, the their state counterparts) and the inherent pow- Co., a plaintiff used forged documents and words “perjury,” “perjure,” and “perjured” can- ers of a trial court, may play in disposing of a perjured testimony in a failed attempt to es- not be found anywhere in the text of the Federal perjuring plaintiff’s claims without trial. tablish priority of invention before the Patent Rules of Civil Procedure. Likewise, “fabricate” Office. When subsequently he sued for a dec- appears nowhere in the Rules. The word “false” “Unclean Hands” laration of entitlement to a design patent on a appears only once, in the heading (but not the The genesis of the case law that puts this arrow beverage bottle, his case was dismissed for his text) of Rule 37(c). in the defense lawyer’s quiver is “unclean hands,” coming into court with unclean hands. 163 Given the absence of these words from the an equitable doctrine that courts apply for F.2d at 507. Rules, it is no wonder that defense counsel often their own protection. It is “a self-imposed ordi- The unclean hands doctrine, flexible in ap- are unaware of a potent weapon in their arsenal nance that closes the doors of a court of equity plication, permits a court to exercise broad to combat the plaintiff who commits or sub- to one tainted with inequitableness or bad discretion to deny relief to a litigant who has orns perjury, fabricates evidence, or both. De- faith relative to the matter in which he seeks acted in an unconscionable way that “has im- fense counsel can, in appropriate cases, obtain relief, however improper may have been the mediate and necessary relation to the matter dismissal and thereby avoid trial. They can do behavior of the defendant.” Precision Instru- that he seeks in respect of the matter in litiga- so despite their inability to satisfy the stand- ment Mfg. Co. v. Automotive Maintenance Mach. tion.” Keystone Driller Co. v. Gen. Excavator Co., ards for summary judgment and despite the Co., 324 U.S. 806, 814–15 (1945). 290 U.S. 240, 245 (1933); accord Precision In- The following two equitable maxims un- strument, 324 U.S. at 814–15. While the mis- derlie the doctrine: (1) he who seeks equity conduct must be closely related to the subject must do equity; and (2) he who comes into of the claim, it need not rise to the level of fraud equity must come with clean hands. See, e.g., or illegal conduct. John Norton Pomeroy, Eq- 27A Am. Jur. 2d, Equity §§119, 126 (1996). If uity Jurisprudence 397, 404 (5th ed. 1941) not already encompassed by the first maxim, (“It is not alone fraud or illegality which will the courts have added the requirement that prevent a suitor from entering a court of equity; any really unconscientious conduct, connected with the controversy to which he is a party, will repel him from the forum whose very founda- Jonathan M. Stern is Chair of the DRI Aerospace Law Committee. He practices tion is good conscience.”); see also Mas, 163 aerospace and insurance coverage law with Schnader Harrison Segal & Lewis F.2d at 507–8. Moreover, the doctrine does not LLP, where he is resident in the Firm’s Washington, DC, office. Mr. Stern, who call for a balancing of the misconduct on both holds FAA-issued commercial pilot, control tower operator, and ground instruc- sides of the case. Rather, the conduct of the tor certificates, was formerly an air traffic controller at Washington National party seeking relief and its effect on the judicial Airport and a flight instructor. process are the sole considerations. E.g., Alcatel August 2004 © 2004 DRI. All rights reserved. 51 Committee Perspectives Aerospace Law Committee USA, Inc. v. DGI Techs., Inc., 166 F.3d 772, 794 Shawmut Bank. Rockdale subsequently sued As the First Circuit stated in Aoude v. Mobil n.92 (5th Cir. 1999); Mas, 163 F.2d at 510–11; the bank for fraud and negligence for its failure Oil Corp., 892 F.2d 1115, 1118 (1st Cir. 1989): United Cities Gas Co. v. Brock Exploration Co., to disclose environmental contamination of the “Because corrupt intent knows no stylistic 995 F.Supp. 1284, 1296 n.11 (D. Kan. 1998). property. To bolster the damages case, Rock- boundaries, fraud on the court can take many Traditionally an equitable defense, the un- dale’s president created a letter that purported forms.” Some of the more creative or interesting clean hands doctrine has at times since the to be a third-party offer to lease the subject examples of conduct that triggered the unclean merger of law and equity been applied to cases property for a specified monthly amount. The hands and fraud on the court doctrines are at law. E.g., Tempo Music, Inc. v. Myers, 407 F.2d letter was referenced in an interrogatory re- the following: 503, 507 n.8 (4th Cir. 1969); Buchanan Home & sponse prepared by the plaintiffs, and the Auto Supply Co. v. Firestone Tire & Rubber Co., president testified in deposition to the letter’s Suborning perjury 544 F.Supp. 242, 245 (D.S.C. 1981); Cummings v. authenticity. Only after the nominal author Plaintiffs in a defamation case involving re- Wayne County, 533 N.W.2d 13, 14 (Mich. Ct. testified that the letter was a fake was the forg- ports that they stole two dogs were found to App. 1995). But see Shirvanian v. Defrates, No. ery admitted. have paid a witness to provide a false alibi for 14-02-00447-CV, 2004 Tex. App. LEXIS 182 the day of the dognapping and to testify falsely (Jan. 8, 2004) (rejecting application of unclean The conduct of the party that he heard a defendant making defamatory hands to action at law). As a practical matter, statements about one of the plaintiffs on the there may be little need to apply the doctrine in seeking relief and its effect radio and, as a result, had a lower opinion of law cases because of the parallel development her. Schultz v. Sykes, 638 N.W.2d 604 (Wis. of the “fraud on the court” doctrine. on the judicial process are App. 2001). “Fraud on the Court” the sole considerations. Suppressing evidence The Supreme Court has described fraud on the Plaintiff was found to have suppressed an im- court as “a wrong against the institutions set up In affirming the dismissal, the appellate portant medical report in an Americans With to protect and safeguard the public.” Hazel- court relied on a trial court’s inherent power to Disabilities Act case. Maynard v. Nygren, 332 Atlas Glass Co. v. Hartford-Empire Co., 322 U.S. dismiss a case when a litigant commits a fraud F.3d 462 (7th Cir. 2003). 238, 246 (1944). “Fraud on the court” is used as on the court: shorthand to describe a variety of improper A “fraud on the court” occurs where it can Improperly accessing an acts that may lead to sanctions under the rules be demonstrated, clearly and convincingly, opponent’s work product of civil procedure or pursuant to a court’s in- that a party has sentiently set in motion A plaintiff in a slip-and-fall case who was an herent powers in managing its docket. E.g., some unconscionable scheme calculated employee of the insurance company that ad- Stanley Shenker & Assocs. v. World Wrestling to interfere with the judicial system’s abil- ministered claims against the supermarket in Fed’n. Entm’t, 48 Conn.Supp. 357 (Conn. Super. ity impartially to adjudicate a matter by which the fall occurred accessed the insurer’s Ct. 2003). Hazel upheld the vacation by the improperly influencing the trier or unfairly computerized file, which contained defense Third Circuit of a judgment for patent infringe- hampering the presentation of the oppos- counsel’s work product.
Load more

Recommended publications
  • The Doctrine of Clean Hands
    LITIGATION - CANADA AUTHORS "Clean up, clean up, everybody clean up": the Norm Emblem doctrine of clean hands December 06 2016 | Contributed by Dentons Introduction Origins Bethany McKoy Recent cases Comment Introduction On occasion, in response to a motion or claim by an adverse party seeking equitable relief, a party will argue that the relief sought should be denied on the basis that the moving party has not come to court with 'clean hands'. This update traces the origin of what is often referred to as the 'doctrine of clean hands' and examines recent cases where: l a moving party has been denied equitable relief on the basis that it came to court with unclean hands; and l such arguments did not defeat the moving party's claim. Origins The doctrine of clean hands originated in the English courts of chancery as a limit to a party's right to equitable relief, where the party had acted inequitably in respect of the matter. In the seminal case Toronto (City) v Polai,(1) the Ontario Court of Appeal provided some insight into the origins and purpose of the doctrine: "The maxim 'he who comes into equity must come with clean hands' which has been invoked mostly in cases between private litigants, requires a plaintiff seeking equitable relief to show that his past record in the transaction is clean: Overton v. Banister (1844), 3 Hare 503, 67 E.R. 479; Nail v. Punter (1832), 5 Sim. 555, 58 E.R. 447; Re Lush's Trust (1869), L.R. 4 Ch. App. 591. These cases present instances of the Court's refusal to grant relief to the plaintiff because of his wrongful conduct in the very matter which was the subject of the suit in equity."(2) Although the court declined to use the doctrine to dismiss the appellant's action for an injunction in that case, it did set the stage for the maxim's future use in Canadian courts.
    [Show full text]
  • That Is the Question! Postaccident Police Investigations
    TRUCKING LAW To Cooperate or Not… That Is the Question! Postaccident Police By Brian Del Gatto Investigations and Julia Paridis Use of response teams, Consider the following hypothetical scenario. A driver as well as driver training, for your motor carrier client is headed to a rest stop for a can limit potentially much-needed break. Before moving into the exit-only lane, damaging statements. he or she checks his or her rear- and side-view mirrors and doesn’t notice any cars in the lane to his or The next few minutes are crucial and will her right. As the driver signals to change have a profound impact on the ultimate out- lanes and moves right into the exit lane, come of this matter for the driver, the motor the driver’s phone rings, and he or she looks carrier, and the insurers of each. down for a second to determine who it is. The driver then looks up just as the right- Postaccident Investigations front passenger side of the tractor collides The policeman on the beat or in the with the left-back driver side of a four-door patrol car makes more decisions and sedan. exercises broader discretion affecting The motor carrier’s driver pulls over and the daily lives of people every day and is confronted by someone yelling, “You hit to a greater extent, in many respects, me!” The person complains of neck and than a judge will ordinarily exercise in back pain and calls 911. The ambulance a week. arrives and places the sedan driver on a —Warren E.
    [Show full text]
  • A New Look at Contract Mistake Doctrine and Personal Injury Releases
    19 NEV. L.J. 535, GIESEL 4/25/2019 8:36 PM A NEW LOOK AT CONTRACT MISTAKE DOCTRINE AND PERSONAL INJURY RELEASES Grace M. Giesel* “[C]ourts cannot make for the parties better agreements than they themselves have been satisfied to make.”1 TABLE OF CONTENTS INTRODUCTION ............................................................................................... 536 I. THE SETTING: THE TYPICAL CASE ..................................................... 542 II. CONTRACT DOCTRINE APPLIES .......................................................... 544 III. CONTRACT MISTAKE DOCTRINE ......................................................... 545 IV. TRADITIONAL APPLICATION OF CONTRACT DOCTRINE TO THE TYPICAL PERSONAL INJURY RELEASE SITUATION.............................. 547 A. A Shared Mistake of Fact and Not a Speculation or Prediction . 547 B. The Injured Party Has the Risk of Mistake by Conscious Ignorance .................................................................................... 548 C. The Release Places the Risk of Mistake on the Injured Party ..... 549 D. Traditional Application of the Unilateral Mistake Doctrine to the Typical Personal Injury Release Situation ............................ 554 E. Conclusions about Traditional Application of the Mistake Doctrine ...................................................................................... 555 V. COURTS’ TREATMENT OF PERSONAL INJURY RELEASES .................... 555 A. Mistake Doctrine Applies with an Unknown Injury But Not with an Unknown Consequence of a Known Injury ...................
    [Show full text]
  • Contingency Fee Retainer Agreement (Personal Injury)
    Contingency Fee Retainer Agreement (Personal Injury) This document incorporates more than two dozen required clauses further to the Solicitors Act, R.S.O. 1990, c.S.15, Contingency Fee Agreements, O. Reg. 195/04. This document should be adapted to suit your practice and the matter for which it is being used. See endnote. [Firm Name, Address, Telephone Number, Email] [Date] [Client Name] [Client Address] Re: Accident of [date of accident] Part 1: Our Services Legal services covered by this contract [Firm Name and/or Lawyer Name] is being retained by the client to provide the following services and to represent the client in respect to injuries, losses and damages resulting from a [type of accident] which occurred on or about [date]. We agree to act for you in your legal claim against [name of Defendant(s)], once we receive a signed and dated copy of this contract. We will then be your lawyers throughout the whole legal process including going to trial if necessary. (The attached document called Steps in a Lawsuit explains the basic steps most lawsuits go through as well as some legal terms.) The limitation period, or the latest date by which we will commence a lawsuit, is [Day, Month, Year]. At the same time, we will try to settle your case to obtain a favourable settlement for you. A settlement is an agreement between the parties to a lawsuit which sets out how they will resolve the claim. If your claim is settled, it will not have to go to trial. We will keep you informed about matters that arise, and discuss with you any significant decisions you must make.
    [Show full text]
  • Equity—Clean Hands Doctrine—Not Automatically Invoked Against Fraudulent Transferor
    University of Arkansas at Little Rock Law Review Volume 6 Issue 4 Article 5 1983 Equity—Clean Hands Doctrine—Not Automatically Invoked against Fraudulent Transferor Rufus E. Wolff Follow this and additional works at: https://lawrepository.ualr.edu/lawreview Part of the Banking and Finance Law Commons Recommended Citation Rufus E. Wolff, Equity—Clean Hands Doctrine—Not Automatically Invoked against Fraudulent Transferor, 6 U. ARK. LITTLE ROCK L. REV. 559 (1983). Available at: https://lawrepository.ualr.edu/lawreview/vol6/iss4/5 This Note is brought to you for free and open access by Bowen Law Repository: Scholarship & Archives. It has been accepted for inclusion in University of Arkansas at Little Rock Law Review by an authorized editor of Bowen Law Repository: Scholarship & Archives. For more information, please contact [email protected]. EQUITY-CLEAN HANDS DOCTRINE-NOT AUTOMATICALLY IN- VOKED AGAINST FRAUDULENT TRANSFEROR-MACCUne v. Brown, 8 Ark. Ct. App. 51, 648 S.W.2d 811 (1983). On December 12, 1978, six hundred fifty gold Krugerrands, thirteen Mexican pesos and one double eagle gold piece were placed in a Little Rock bank in a safety deposit box leased to Billie Jean McCune, the defendant. W.G. Brown, the defendant's father, re- tained the keys to the box. On August 28, 1981, Mr. Brown filed a complaint in equity against his daughter seeking a temporary re- straining order to keep her from removing any of the contents of the safety deposit box. At trial Mr. Brown, who was involved in a di- vorce proceeding at the time of the transfer, admitted he had trans- ferred the gold to his daughter in an attempt to defeat his ex-wife's rights to the property.
    [Show full text]
  • Doctrine of Unclean Hands (Cole V. Cole, 100 App. Div. 296 (3D Dep't 1944))
    St. John's Law Review Volume 19 Number 2 Volume 19, April 1945, Number 2 Article 11 Domestic Relations--Doctrine of Unclean Hands (Cole v. Cole, 100 App. Div. 296 (3d Dep't 1944)) St. John's Law Review Follow this and additional works at: https://scholarship.law.stjohns.edu/lawreview This Recent Development in New York Law is brought to you for free and open access by the Journals at St. John's Law Scholarship Repository. It has been accepted for inclusion in St. John's Law Review by an authorized editor of St. John's Law Scholarship Repository. For more information, please contact [email protected]. 1945 ] RECENT DECISIONS to have made the oral agreement is no longer able to make a denial.5 In the present case, the court dismissed the complaint for to do otherwise would be to frustrate the above intention of the legislature. It was further intended by the legislature that this provision was to cover agreements made to take effect at or after death, 6 and inasmuch as in this case the alleged agreement could not be completed until the promisor's death, it was void. This is directly in line with the majority of decisions in New York. In a recent case 7 in point, it was held that an oral agreement by an employee irrevocably designat- ing plaintiff sole beneficiary of employee's interest at his death in New York City Retirement Fund was void under this same provision of the Statute of Frauds. The intention of the legislature in passing a statute of frauds and this amendment has always been to prevent fraud.
    [Show full text]
  • “Clean Hands” Doctrine
    Announcing the “Clean Hands” Doctrine T. Leigh Anenson, J.D., LL.M, Ph.D.* This Article offers an analysis of the “clean hands” doctrine (unclean hands), a defense that traditionally bars the equitable relief otherwise available in litigation. The doctrine spans every conceivable controversy and effectively eliminates rights. A number of state and federal courts no longer restrict unclean hands to equitable remedies or preserve the substantive version of the defense. It has also been assimilated into statutory law. The defense is additionally reproducing and multiplying into more distinctive doctrines, thus magnifying its impact. Despite its approval in the courts, the equitable defense of unclean hands has been largely disregarded or simply disparaged since the last century. Prior research on unclean hands divided the defense into topical areas of the law. Consistent with this approach, the conclusion reached was that it lacked cohesion and shared properties. This study sees things differently. It offers a common language to help avoid compartmentalization along with a unified framework to provide a more precise way of understanding the defense. Advancing an overarching theory and structure of the defense should better clarify not only when the doctrine should be allowed, but also why it may be applied differently in different circumstances. TABLE OF CONTENTS INTRODUCTION ................................................................................. 1829 I. PHILOSOPHY OF EQUITY AND UNCLEAN HANDS ...................... 1837 * Copyright © 2018 T. Leigh Anenson. Professor of Business Law, University of Maryland; Associate Director, Center for the Study of Business Ethics, Regulation, and Crime; Of Counsel, Reminger Co., L.P.A; [email protected]. Thanks to the participants in the Discussion Group on the Law of Equity at the 2017 Southeastern Association of Law Schools Annual Conference, the 2017 International Academy of Legal Studies in Business Annual Conference, and the 2018 Pacific Southwest Academy of Legal Studies in Business Annual Conference.
    [Show full text]
  • In the United States District Court for the Southern District of Alabama Southern Division
    Case 1:08-cv-00204-CG-C Document 69 Filed 01/26/11 Page 1 of 15 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF ALABAMA SOUTHERN DIVISION CHICAGO TITLE INSURANCE ) COMPANY, as assignee of ) WASHINGTON MUTUAL BANK ) ) Plaintiff, ) ) v. ) CIVIL ACTION NO. 08-00204-CG-C ) GERALD LLOYD PROSCH, ) ) Defendant. ) MEMORANDUM OPINION AND ORDER This matter is before the court on plaintiff=s motion for summary judgment. (Doc. 50), defendant’s opposition thereto (Doc. 64), and plaintiff’s reply (Doc. 68). For the reasons that will be explained below, the court finds that summary judgment is due to be granted in favor of plaintiff. FACTS Plaintiff=s amended complaint asserts seven counts against defendant, Gerald Lloyd Prosch: I) unjust enrichment, II) equitable subrogation, III) constructive trust, IV) breach of statutory warranty of title, V) breach of express warranty of title, VI) negligence, VII) wantonness, and VIII) indemnity. (Amended Complaint, Doc. 29). The parties generally do not dispute the underlying facts in this case, but dispute their legal significance. (See Doc. 64, ¶ 2). Defendant owned Lot 4, Cothran Oaks, (“the property”) encumbered by a note and mortgage in favor of Colonial Bank. In August 1999, defendant sold the property, via a vendor’s Case 1:08-cv-00204-CG-C Document 69 Filed 01/26/11 Page 2 of 15 lien deed1, to Lawanda and Travis Mathews. (Doc. 52-3). Travis Mathews executed a quitclaim deed in Lawanda Mathews’ favor on November 27, 2001. (Doc. 52-4). In April 2002, defendant agreed to sell the property to Lawanda Mathews and he cancelled the vendor’s lien.
    [Show full text]
  • The Virginia Car Accident Guide: a Former Insurance Lawyer’S Guide to Auto Accident Injury Claims
    The Virginia Car Accident Guide: A Former Insurance Lawyer’s Guide to Auto Accident Injury Claims: By James R. Parrish, Esquire If you are reading this book then CONGRATULATIONS! You have taken the first step to obtaining a better understanding of the automobile accident personal injury claims process. This book is designed to educate you about this area of the law and teach you how the insurance companies operate. Over the last several years, the insurance industry has spent millions (maybe billions) of dollars successfully brainwashing the general public to believe that people who make personal injury claims are lazy, good for nothing men and women just looking for a “free ride” and “easy money.” In fact, the insurance companies will go to almost any length to prevent you from successfully pursuing your claim. I know this because I used to defend insurance companies and worked intimately with everyone in the insurance industry from front-line adjusters to corporate “big wigs.” I used to lecture to insurance professionals to help them more successfully settle claims for small amounts or deny claims altogether. I wrote articles for insurance/risk management companies. I even graduated from the International Association of Defense Counsel trial academy! This book is written with knowledge I gained from all of my interactions with the insurance companies with which I now do battle on behalf of people injured in car accidents. It is my hope that the information contained within this book will arm you with the knowledge you will need if you have been injured in an automobile accident and deserve to recover compensation for those injuries.
    [Show full text]
  • The Clean-Hands Defense in Patent Infringement Suits
    NOTES THE CLEAN-HANDS DEFENSE IN PATENT INFRINGEMENT SUITS: AN EXPANDED CONCEPT* Two factors have combined to make the patent field particularly fruitful of conflict between private claim and public interest. The first is the double aspect of the patent itself, as a sanction of exclusive privilege, purportedly1 granted in furtherance of a broad social objective. The second, and the more specific, is the extensive overlap of the domains controlled by the frankly monopolistic patent system and by the anti-trust laws. A special and acute problem under the latter head arises with respect to the so-called "tying clauses", by means of which the patentee seeks to impose upon his licensee, as a condition of license, an obligation to purchase from the patentee or from his nominee other goods or materials, for use in connection with the inven- tion.2 Section 3 of the Clayton Act 3 lays an interdiction upon such contracts where they result in lessening of competition or creation of monopoly. Two separable questions are suggested by the tying-contracts practice, and are raised by the Morton Salt case.4 First, by whom and under what cir- cumstances may the illegality or repugnance to public policy of the tying clause be raised? Secondly, how broad a conception of public policy is to govern the disposition of such a plea? Prior to the principal case, these questions had been set in a very different theoretical framework from that which must be constructed to accommodate the present holding. * Morton Salt Co. v. G. S. Suppiger Co., 62 Sup.
    [Show full text]
  • 1 No. 113,156 in the COURT of APPEALS of the STATE OF
    No. 113,156 IN THE COURT OF APPEALS OF THE STATE OF KANSAS WATCO COMPANIES, INC., d/b/a SOUTH KANSAS AND OKLAHOMA RAILROAD, Appellant, v. SHANE CAMPBELL and JERRY STANDLEE, Appellees. SYLLABUS BY THE COURT 1. Documents obtained through a request for production of documents may, in the court's discretion, be relied upon as authentic for purposes of a summary judgment motion because the method in which they are obtained lends them credibility. 2. Where there is no factual dispute, appellate review of an order regarding summary judgment is de novo. 3. The district court's reasons for granting or denying summary judgment are immaterial if the ruling was correct for any reason. 4. Comparative implied indemnity or, as it is more accurately termed, postsettlement contribution describes the cause of action initiated by a tortfeasor in a negligence lawsuit to recover from a joint tortfeasor the share of the damages proportional to the joint tortfeasor's fault. 1 5. When total damages have not been fixed by judicial proceeding but by compromise and settlement between the plaintiff and a defendant, the amount the defendant has paid in full settlement for all damages is the maximum amount subject to be apportioned among joint tortfeasors. 6. A carrier against whom suit is brought under the Federal Employers' Liability Act (FELA) for injuries sustained by an employee within Kansas has a right of contribution or comparative implied indemnity against a third-party tortfeasor if (1) the third party's negligence partially caused or contributed to the injury or damages, (2) the carrier had some causal negligence, and (3) the injured employee's causal negligence is less than 50%.
    [Show full text]
  • EQUITABLE JURISDICTION to PROTECT PERSONAL RIGHTS Joseph R
    YALE LAW JOURNAL Vol. XXXIII DECEMBER, 1923 No. 2 EQUITABLE JURISDICTION TO PROTECT PERSONAL RIGHTS JosEPH R. LONG It is a curious fact in the history of the court of equity that certain limitations upon its jurisdiction have been insistently declared by text- writers and judges which are not only contrary to the fundamental theory of equitable jurisdiction, but also have no substantial foundation in the actual decisions and practice of the courts. Among these anoma- lous limitations may be mentioned the doctrines that a court of equity will not grant relief against a pure mistake of law; that it will never enforce a forfeiture; and that it has no jurisdiction to protect personal rights where no property rights are involved. After a long struggle the courts of equity have now about broken away from the unsound doctrines that they cannot grant relief against mistakes of law nor enforce forfeitures, and there are clear signs that the equally unsound doctrine that they have no jurisdiction to protect personal rights will soon be abandoned. The unreasonableness of so arbitrary and unjust a doctrine that a court of equity will protect one in his rights of contract and property, but deny protection to his far more sacred and vital rights of person, has often been commented upon, but the unsubstantial char- acter of the foundation upon which this doctrine rests has not been so generally recognized. Until recently it was inevitable that the jurisdiction of the court of equity should, in practice, have been almost entirely confined to the protection of property rights.
    [Show full text]