Russell L. Dawson v. Contractors Transport Corp. Magazine Bros. Construction Corp.

FAHY, Senior Circuit Judge

(dissenting) :

I accept the position of the majority that we are called upon to decide whether Contractors is entitled as of right, by reason of the Seventh Amendment, to a jury trial of the issue of Singleton’s negligence on Contractors’ cross-complaint against Singleton. I think Contractors has the right. The evidence bearing on the issue was heard by the jury and I think the judge should not have taken it from the jury when it was deciding the issue of Contractors’ own negligence in contributing to Dawson’s injury. 1

The most recent Supreme Court decision on the subject rendered after the merger of equity and law in the federal courts in 1938, is Ross v. Bernhard, 396 U.S. 531 , 90 S.Ct. 733 , 24 L.Ed.2d 729 (1970). Ross was a stockholders’ derivative suit for money damages and other appropriate relief against the directors of their closed-end investment company and its investment brokers. Plaintiffs demanded a jury trial on the corporation’s claims against the directors for conflicts of interest, manifested by the payment of excessive commissions to the brokers. The District Court denied defendants’ motion to strike plaintiffs’ jury demand. The Second Circuit reversed, holding that a derivative action being traditionally and wholly equitable in nature, a jury is not constitutionally required to try any part of it. On petition for certiorari, granted because of a conflict between circuits, 2 the Supreme Court reversed the Court of Appeals, holding that the right to a jury trial depends not on the traditional context in which an issue is raised, but upon the nature of the issue to be decided. The Court regarded a derivative suit as having a dual nature. One aspect, whether the shareholder may sue on behalf of the corporation, is of an equitable nature. The other, the corporation’s claim, is legal, involving a determination, inter alia, of fraud. The Court held that plaintiffs had the right under the Seventh Amendment to have this legal issue tried to a jury.

Ross cites earlier Supreme Court cases as authority for its holding but appears to go further in securing the Seventh Amendment right than earlier post-merger cases. Both Beacon Theatres, Inc. v. Westover, 359 U.S. 500 , 79 S.Ct. 948 , 3 L.Ed.2d 988 (1959), and Dairy Queen, Inc. v. Wood, 369 U.S. 469 , 82 S.Ct. 894 , 8 L.Ed.2d 44 (1962), involved suits in which, even before merger, the issues were cognizable in a court of law. In Beacon Theatres the legal claims arose from a counterclaim that turned on the reasonableness of a restraint of *735 trade uhder the applicable federal antitrust laws. The issue of reasonableness in turn depended upon the existence of competition between the parties, a question for the jury as of right. Denial of the right had been based upon a belief that the claim for injunctive relief made out in the original complaint had styled the cause for all purposes as in equity. To have issued an injunction without a jury, however, would have barred a later exercise by the defendant of his constitutional right to jury trial on the allegations of his counterclaim. Simply stated, Beacon Theatres held that if a cause of action contains legal and equitable claims, the equitable cannot be decided first if they foreclose the exercise of a party’s constitutional right to a jury trial.

The complaint in Dairy Queen prayed for an injunction, an “accounting,” both of which are equitable remedies, and money damages. The Court found that underlying the claim for all equitable relief was the claim for money damages based on breach of contract and trademark infringement, both legal causes of action entitling the plaintiff as of right to trial by jury. The Court refused to allow the legal claims to be swallowed by the equitable ones. In response to the argument that an accounting is beyond the capabilities of a jury to look into complicated business records, the Court cited Fed.R.Civ.P. 53(b), authority for a court to appoint a master to assist the jury.

Consistently with Beacon Theatres and Dairy Queen, the Ross Court, holding that the “Seventh Amendment question depends on the nature of the issue to be tried rather than the character of the overall action,” cited Simler v. Conner, 372 U.S. 221 , 83 S.Ct. 609 , 9 L.Ed.2d 691 (1963), a per curiam opinion that followed both Beacon Theatres and Dairy Queen. Simler involved a suit for a declaratory judgment. The Court observed that the

controversy between petitioner and respondent in substance involves the amount of fees petitioner, a client, is obligated to pay respondent, his lawyer. . . .

The case was in its basic character a suit to determine and adjudicate the amount of fees owing to a lawyer by a client under a contingent fee retainer contract, a traditionally ‘legal’ action. See Trist v. Child, 21 Wall. 441, 447 [ 88 U.S. 441 , 22 L.Ed. 623 ;] Stanton v. Embrey, 93 U.S. 548 [ 23 L.Ed. 983 .] The fact that the action is in form a declaratory judgment case should not obscure the essentially legal nature of the action. The questions involved are traditional common-law issues which can be and should have been submitted to a jury under appropriate instructions as petitioner requested.

372 U.S. at 223 , 83 S.Ct. at 611 . Simler , confined to its facts, indicates that a right to jury trial exists in a suit that seeks a remedy created by the legislature but otherwise involving an action traditionally cognizable at law (presumably as of 1791, the year the Seventh Amendment was adopted by the requisite number of States to be in force). 3

Ross , itself, however, utilizes the language of Simler , which is somewhat broader than was required to cover a legislative remedy, as illustrative of the basic nature-of-the-issue test. Thus, Ross states, 396 U.S. 531 at 537-538 , 90 S.Ct. 733 at 738:

Under those cases, where equitable and legal claims are joined in the same action, there is a right to jury trial on the legal claims which must not be infringed either by trying the legal issues as incidental to the equitable ones or by a court trial of a common issue existing between the claims. The Seventh Amendment question depends on the nature of the *736 issue to be tried rather than the character of the overall action. 10 See Sim-ler v. Conner, 372 U.S. 221 , 83 S.Ct. 609 , 9 L.Ed.2d 691 (1963).

Ross extends the right to trial by jury to a class of plaintiffs who, prior to merger (and in some jurisdictions prior to Ross), would not have had the right on a corporation’s claims. At the least Ross I think means that if a claim formerly cognizable only in equity because of the law’s reluctance to enforce derivative rights is now brought in a federal civil action and the underlying issue is legal, the right to a jury trial must be preserved.

In the case now before us, Contractors sought, on the basis of an allegation of negligence, a form of contribution — the Murray credit — against the third party defendant Singleton. Singleton was immune from suit by Dawson, who, as an employee of Singleton, was remitted as to Singleton to the workmen’s compensation laws. Not only does the District of Columbia law allow contribution among negligent joint tortfeasors, 4 it allows a defendant to implead a joint tortfeasor who has not been brought into the suit by the original plaintiff either because of immunity, 5 or of plaintiff’s choice. 6 The question whether Contractors is entitled as of right to a jury trial of its claim against Singleton must be resolved by making the inquiries set out in Ross , that is, the nature of an issue for purpose of the Seventh Amendment is to be ascertained by examining (1) the pre-merger custom of trying such questions; (2) the remedy sought; and (3) the practical abilities and limitations of juries. 396 U.S. at 538 n. 10, 90 S.Ct. 733 . I understand the majority to be of opinion that the crucial factor in the present case is whether the remedy sought is “legal” or “equitable.” Accordingly the historical inquiry to follow will concentrate upon determining whether contribution was a remedy available in the courts of law prior to the 1938 merger of law and equity in the federal courts. 7

I. The remedy sought

Ross , read with earlier Supreme Court cases on the subject of the Seventh Amendment right, suggests that the inquiry ought to be addressed to the English common law up to 1791 8 and the American court decisions prior to 1938. 9

a. Pre-1791 English common law

The history of contribution based on claims for negligence is not well-docu *737 mented prior to 1791, no doubt due largely to the English tradition of oral delivery of opinions, and, before 1785, to a large number of unofficial reporters. The situation led to a “multiplicity of duplicating and often inaccurate reports.” 10 “Reporting [was] selective, and though there have been some three hundred series of reports, not only does not one of them report all decided appellate cases, but not all of them combined do so. Furthermore, reports are only of those parts of the opinion deemed by the particular reporter to be useful to the lawyer.” 11

Nevertheless, significant light is available as to the remedy of contribution prior to 1791, and thereafter. Although its origin has been attributed to the Chancery Court, 12 it gradually became concurrently available as a remedy at law. 13 For instance, joint obligors of a debt, or co-sureties of a contract, could enforce their joint obligation in a court of law as well as in Chancery. 14 As early as 1622 contribution among negligent joint tortfeasors was a remedy available at law. In Arundel v. Gardiner, Cro.Jac. 652, 79 Eng.Rep. 563 (K.B.1622), a sheriff, the plaintiff, had seized the goods of a shopkeeper pursuant to a writ of execution obtained by the defendant. The shopkeeper, in an earlier action in the law court for trespass against the sheriff, had recovered money damages. The sheriff sought in the later action to recover from the defendant. The court found a promise by the defendant to indemnify 15 the sheriff and allowed him to recover on that promise.

The following year, in Battersey’s Case (sub nom. Fletcher v. Harcot), Winch 49, 124 Eng.Rep. 41 (C.P.1623), in an action upon the case upon an as-sumpsit brought at law plaintiff, who in an earlier law suit had been held liable to Battersey, was allowed to recover against defendant who had requested plaintiff to do the act for which he was earlier found liable to Battersey. Defendant had arrested Battersey and had taken him to plaintiff’s inn. Defendant has requested plaintiff to keep Battersey in custody. In the earlier action Batter-sey recovered damages from plaintiff for false imprisonment. The court in the second action apparently implied a promise by defendant that he would “save plaintiff harmless.” 16 The fiction of the implied promise enabled the plaintiff’s case to conform to the fixed common-law form of action and therefore allow the plaintiff to recover contribution in a law court. Significantly, the court recognized the limitation upon allowing recovery, that is, had plaintiff known the imprisonment was false he would not have been allowed to recover from defendant. Stated another way, contribution was accorded a negligent joint tort-feasor by a court of law.

*738 The next ease in the reports in which contribution was clearly sought at law by one negligent (non-intentional) joint tortfeasor against another is Philips v. Biggs, Hardres 164, 145 Eng.Rep. 433 (Ex.1659). The disposition of the case, however, is not reported, although the reporter noted that the court thought the case one of first impression and entertained some doubt as to whether plaintiff should be allowed to recover.

The first report of a case in which a party sought contribution at law from an intentional joint tortfeasor is Merryweather v. Nixan, 8 T.R. 186, 101 Eng.Rep. 1337 (K.B.1799). In that case the court refused to allow contribution on the theory that a willful wrongdoer must bear fully the responsibility for his own acts.

The subsequent decision of Betts v. Gibbins, 2 Ad. & E. 57, 111 Eng.Rep. 22 (K.B.1834), allowed plaintiffs to recover at law against defendant on an implied promise of indemnity where plaintiffs, unintentionally misdelivered eight hogsheads of acetate of lime belonging to a third party. The third party sued plaintiffs in an earlier action in trover and recovered. Betts, in the following composite of opinions of the judges, makes clear the distinction between Merryweather v. Nixan and the earlier Battersey’s Case:

The case of Merryweather v. Nixan (8 T.R. 186) seems to me to have been strained beyond what the decision will .bear. The present case is an exception to the general rule. The general rule is, that between wrongdoers [intentional tortfeasors] there is neither indemnity nor contribution: the exception is, where the act is not clearly illegal in itself [negligent]. And Mer-ryweather v. Nixan (8 T.R. 186), was, besides, only a refusal of a rule nisi. I do not see the distinction between contribution and indemnity; but it appears to me that there is nothing to prevent either in this case. The parties were not plainly wrongdoers, in the sense in which that word is used in the cases referred to for the defendant. . . . This case bears no analogy to those in which an indemnity is claimed for acts obviously unlawful, like breaches of the peace

2 Ad. & E. at 74-77, 111 Eng.Rep. at 29-30. Thus, Merryweather was a rule against contribution only in cases where the tort was intentional, as opposed to merely negligent. Although Betts was decided in 1834, it provides reinforcing hindsight as to the state of the common law by 1791 on the availability of contribution at law. 17

There is no evidence to indicate that law courts refused contribution among negligent joint tortfeasors. Consequently, the above cases support the conclusion that contribution in England was a legal remedy as of 1791.

b. American decisions on the right to contribution prior to the 1988 merger

Apparently the early American decisions rendered, as of an 1898 survey, followed the law as stated in Betts. 18 In a subsequently stated and misplaced reliance of American courts upon Merry *739 weather v. Nixan, 19 a turning point occurred after 1898, so that as of the current edition of Professor Prosser’s treatise on Torts in only nine jurisdictions has there been a judicial resurrection of the earlier Anglo-American rule allowing contribution among negligent joint tortfeasors. 20 As of 1965, at least 24 states had passed legislation allowing contribution among joint tortfeasors, 21 but the rule against allowing any contribution continues to flourish in the United States. 22

In the District of Columbia, it was not until 1942 that this court clearly held that when parties are “not intentional and wilful wrongdoers, but are made so by legal inference or intendment, contribution may be enforced.” George’s Radio, Inc. v. Capital Transit Co., 75 U.S.App.D.C. at 191, 126 F.2d at 223.

II. Pre-merger custom with reference to trial of the issues

As to this aspect of the Ross inquiry, negligence as we know it today was not available as a cause of action prior to 1791. However, courts have recognized that negligence is analogous to the common law action of trespass on the case, which was tried by a jury. Consequently, negligence actions are considered to be triable by jury as of right. Cf. Martin v. Detroit Marine Terminals, Inc., 189 F.Supp. 579, 581-583 (E.D.Mich.1960); Byrd v. Blue Ridge Rural Electric Cooperative, Inc., 356 U.S. 525 , 78 S.Ct. 893 , 2 L.Ed.2d 953 (1958). See Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal.L.Rev. 1867, 1890-92 (1966). I doubt that there is any dispute that had this been an action for money damages, a legal remedy, the parties to the action would be considered to have a constitutional right to trial by jury. 23

While there is no pre-merger practice in the District of Columbia as to the handling of negligence issues underlying claims for contribution, since contribution was not allowed among negligent joint tortfeasors until 1942, the practice after that year is significant. In Knell v. Feltman, supra, Martello v. Hawley, *740 supra, and Jones v. Schramm, 141 U.S.App.D.C. 169 , 436 F.2d 899 (1970), the issue of the contributing defendant’s negligence was submitted to the jury.

In the present case, Contractors seeks a form of contribution, 24 a legal remedy, on the basis of the alleged negligence of Singleton. It appears to me to be inescapable that in such a suit for a legal remedy, based upon a negligence question that is typically tried to a jury, Contractors has a constitutional right to jury trial of the alleged negligence.

III. The practical abilities and limitations of juries

The remaining factor set out by Justice White in Ross for determining the “legal” nature of the issue is the feasibility of a jury trial of the disputed issue. Our case presents a familiar factual dispute as to the behavior of an injured employee, an employer and an independent contractor, and requires, as do all negligence cases, the application of the standard of reasonableness or due care to the facts as found by the jury to ascertain liability. -The jury completes its task by setting appropriate damages. Upon a finding by the jury that the impleaded employer is jointly negligent, the trial judge must adjust the damages to reflect the Murray credit, a housekeeping function required of the judge by Jones v. Schramm, supra. 25

But for the operation of the workmen’s compensation laws, this case would have gone to the jury as of right (assuming that, but for those laws, Singleton would have been joined as an original or third party defendant). The compensation laws free Singleton from suit by Dawson, an employee of Singleton, but the federal rules together with the District of Columbia substantive law of contribution allow Contractors to bring Singleton into the action in an attempt to free itself entirely from liability or at least to reduce its liability. The operation of the compensation laws and the liberal joinder devices of the federal rules does not change the nature of the lawsuit. As presenting issues properly and easily triable to a jury, it is more compelling than Ross , and is certainly not as great a departure as Ross , 26 if it be a departure at all, from pre-1938 practice. Indeed, it seems fair to state that this is a suit based on a claim of negligence — historically one tried by a jury — for contribution — a remedy available at law prior to 1791, and, therefore, clearly within the coverage of the Seventh Amendment. The issue here to be tried was not the established Murray credit, itself, but negligence.

Notwithstanding the recurrent question of the wisdom of the jury trial of civil actions 27 — a question not for this court to resolve, but one for constitutional amendment or a different inter *741 pretation of the Seventh Amendment by the Supreme Court — I think Contractors has a constitutional right to a jury trial on the issue of Singleton’s negligence. 28 The Supreme Court has repeatedly stressed that the “federal policy favoring jury trials is of historic and continuing strength,” Simler v. Conner, 372 U.S. 221 at 222 , 83 S.Ct. 609 at 610 , citing Parsons v. Bedford, 28 U.S. (3 Pet.) 266 , 7 L.Ed. 732 (1830); Scott v. Neely, supra; Byrd v. Blue Ridge Rural Electric Cooperative, Inc., supra; Beacon Theatres, Inc. v. Westover, supra; and Dairy Queen, Inc. v. Wood, supra.

Therefore, I would remand the case for a jury trial on the question of Singleton’s negligence. Were the jury to find Singleton jointly negligent, Contractors would be entitled to a Murray credit. 29

. Maintenance of the jury as a fact-finding body is of such importance and occupies so firm a place in our history and jurisprudence that any seeming curtailment of the right to a jury trial should be scrutinized with the utmost care.

Dimick v. Schiedt, 293 U.S. 474, 486 , 55 S.Ct. 296, 301 , 79 L.Ed. 603 (1935). See also Scott v. Neely, 140 U.S. 106 , 11 S.Ct. 712 , 35 L.Ed. 358 (1891).

. The conflict was created between the Second Circuit in Ross and the Ninth Circuit in DePinto v. Provident Security Life Ins. Co., 323 F.2d 826 (9th Cir. 1963).

. Dimick v. Schiedt, supra.

. As our cases indicate, the “legal” nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries. Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply. See James, Right to a Jury Trial in Civil Actions, 72 Yale L.J. 655 (1963).

. George’s Radio, Inc. v. Capital Transit Co., 75 U.S.App.D.C. 187 , 126 F.2d 219 (1942); Knell v. Feltman, 85 U.S.App.D.C. 22 , 174 F.2d 662 (1949).

. Murray v. United States, 132 U.S.App.D.C. 91 , 405 F.2d 1361 (1968).

. Martello v. Hawley, 112 U.S.App.D.C. 129 , 300 F.2d 721 (1962).

. Two cases decided in the Superior Court for the District of Columbia undertake a like historical inquiry in determining that the parties to a statutory summary proceeding for repossession of leased property are entitled under the Seventh Amendment to a jury trial. Urciolo v. Evans, and Davis v. Hunter, 99 Daily Wash.L.Rep. 1729 (D.C.Super.Ct., Sept. 14, 1971).

. “[Rjesort must be had to the appropriate rules of the common law established . . . in 1791.” Dimick v. Schiedt, 293 U.S. 474 at 476 , 55 S.Ct. 296 at 297 ; Baltimore & Carolina Line, Inc. v. Redman, 295 U.S. 654, 657 , 55 S.Ct. 890 , 79 L.Ed. 1636 (1935).

. Justice White suggests that pre-merger history, a more expansive view of the relevant common law practice than that espoused in the earlier Supreme Court cases, see note 7, supra, is to be considered in determining the right to jury trial. Ross v. Bernhard, 396 U.S. 531 at 538 n. 10, 90 S.Ct. 733 .

. M. Price & H. Bitner, Effective Legal Research 283 (1953).

. Id. The difficulty is a tribute to Justice White's characterization of the historical inquiry as “abstruse,” Ross v. Bernhard, 396 U.S. at 538 n. 10, 90 S.Ct. 733 , and no doubt spurred the comments found in James, Right to a Jury Trial in Civil Action, 72 Yale L.J. 655 (1963).

. 2 J. Pomeroy, Equity Jurisprudence § 411 (1941).

. Craythorne v. Swinburne, 14 Ves.Jun. 162, 33 Eng.Rep. 482, 484 (Ch. 1807); Thweatt's Administrator v. Jones, Administrator, 1 Rand. 328 (Va.1823). See also 2 J. Pomeroy, Equity Jurisprudence § 411 (1941).

. E. g., Craythorne v. Swinburne, supra.

. These early indemnity cases are relevant insofar as both the indemnor and indemnee are tortfeasors. They turn on a promise, express or implied, made by one joint tortfeasor to “save the other harmless.” See 1 Bouvier’s Law Dictionary 1532 (Rawle ed. 1914). It is only the promise which makes them indemnity cases. Nevertheless, due to the exigencies of the rigid common law forms of action, these early cases are properly viewed as early forms of contribution among negligent joint tortfeasors. Cf. W. Prosser, Torts § 50 at 306 (1971). See also Betts v. Gibbins, 2 Ad. & E. 57, 111 Eng.Rep. 22 (K.B. 1834).

. Id.

. Accord, Wooley v. Batte, 2 Car. & P. 417, 172 Eng.Rep. 188 (N.P. 1826) (contribution between negligent joint tortfeasors allowed.)

. Those allowing contribution among negligent joint tortfeasors in actions at law are: Horbach’s Adm’rs v. Elder, 6 Harris 33, 18 Pa. 33 (1851); Acheson v. Miller, 2 Ohio St. 203 (1853); Bailey v. Bussing, 28 Conn. 455 (1859); Armstrong County v. Clarion County, 66 Pa. 218 (1870); Farwell v. Becker, 129 Ill. 261 , 21 N.E. 792 (1889). Except for Aclieson and Armstrong County , the opinions above indicate a trial by jury of the issue of the negligence of the party from whom contribution was sought. See Reath, Contribution Between Persons Jointly Charged for Negligence — Merryweather v. Nixan, 12 Harv.L.Rev. 176, 178 (1898); Hatcher, Battersey’s Case, 47 W.Va.L.Q. 123 (1941). See also W. Prosser, Torts § 50, at 306 (1971).

. 1 F. Harper & F. James, Law of Torts § 10.2 (1956). This reliance has been attributed to a semantic difficulty with the use of the word tortfeasors in the Merry-weather opinion. As the word tortfeasors was commonly understood in 1799, its meaning encompassed only the willful or intentional perpetrator of a tort. Reath, Contribution Between Persons Jointly Charged for Negligence—Merryweather v. Nixan, 12 Harv.L.Rev. 176, 178 (1898). Be that as it may, the facts of Merryxoeather limit its application: the wrong there was conversion, an intentional tort.

. See W. Prosser, Torts § 50, at 306-10 (1971).

. See Radoff, Contribution Among Joint Tortfeasors, 44 Tex.L.Rev. 326 n. 5 (1965), for a catalogue of the statutes of these twenty-four states. In Massachusetts and New Jersey, for example, where statutes allow contribution among joint tortfeasors and allow defendants to an original action to implead those claimed to be jointly negligent but not brought into the action by the plaintiff, the practice is to try the issue of the third party defendant’s negligence to the jury along with the issue of the defendant’s negligence. Mass.Ann.Laws Ch. 231B, § 1 (1971 Supp.); O’Mara v. H. P. Hood & Sons, Inc., 71 Mass. 553 , 268 N.E.2d 685 (1971); N.J.Stat.Ann. § 2A :53A-2 (1952); McIntosh v. Chicago Express, Inc., 154 F.Supp. 385 (D.N.J.1957); Wilchek v. Chaney, 163 F.Supp. 199 (D.N.J.1958); Miraglia v. Miraglia, 106 N.J.Super. 266 , 255 A.2d 762 (App.Div.1969).

. See W. Prosser, Torts § 50, at 306-10 (1971).

. In England in civil actions at common law until 1854 the only mode of trial available was the trial by jury. In 1854 the Common Law Procedure Act introduced the possibility of a trial by judge alone. Subsequent Judicature Acts of 1873 and 1875 allowed greater opportunity for parties to dispense with the jury at law. A temporary war measure, the 1918 Juries Act suspended trial by jury in most civil actions at law, but in 1920 the Administration of Justice Act reinstated the jury trial. The most dramatic modification of the right to jury trial occurred in 1933 with the passage *740 of the Administration of Justice (Miscellaneous Provisions) Act. A party has a right to jury trial ' at law in cases of fraud, libel, slander, malicious prosecution, false imprisonment, seduction, or breach of promise to marry. For all other cases, whether there is to be a jury trial is a matter for the discretion of the court. Ward v. James, [1965] 1 All.E.R. 563, 568 (C.A.); Ford v. Blurton, 8 T.L.R. 801 (C.A.1922).

. The Murray credit is an adaptation of the remedy of contribution to cases in which one of the joint tortfeasors is immune from suit by operation of the workmen’s compensation laws. Murray v. United States, supra. Its modification does not in my opinion alter it as a form of contribution for the purposes of this ease.

. Reference, as in Jones v. Schramm, supra, to the equitable origin of contribution, assumed but not there decided, should not obscure the fact that prior to 1791 a suit for contribution was triable in the law courts of England. Moreover, Singleton was here, as was the contributing tortfeasor in Schramm, “in the thick of the fray” — a fray presenting a traditional jury question of liability in tort.

. See Note, Ross v. Bernhard: The Uncertain Future of the Seventh Amendment, 81 Yale L.J. 112 (1971).

. See 5 J. Moore, Federal Practice ]J 38.02 [1] (1971), and the authorities pro and con cited therein.

. Accord, Sleeman v. C. & O. R.R. Co., 290 F.Supp. 830, 833-834 (1968).

. In reference to note 7 of the majority opinion, the early English cases cited in this dissenting opinion establish with sufficient certainty that contribution was awarded negligent joint tortfeasors in the English courts of law as of 1791, and that all trials at law as of 1791 were by jury. The post-1791 English decisions reflect the above situation. The decisions of the American courts cited in this opinion, also post-1791, demonstrate that in many American jurisdictions, the English rule allowing contribution among negligent joint tortfeasors and prohibiting contribution among willful joint tortfeasors was continued. I think it can be said with confidence that contribution has been available as a remedy at law as an unbroken tradition dating back at least to the early seventeenth century.

The 1823 Virginia equity coui't case cited by the majority in footnote 7 is not authority to the contrary of the position above stated. Instead Thweatt’s Administrator v. Jones, Administrator, supra, demonstrates the availability of contribution in the law courts. The sentence immediately preceding that quoted by the majority reads:

The reason why the law refuses its aid to enforce contribution against wrongdoers [intentional tortfeasors], is that they may be intimidated from committing the wrong, by the danger of each being made responsible for all the consequences ; * a reason, which does not

* The case in 8 T.R. 186 [Merryweather v. Nixan] cited at the bar, seems to be one of a voluntary and active [intentional] tort.

apply to torts or injuries arising from mistakes or accidents [negligence], or involuntary omissions in the discharge of official duties.

1 Rand. 328 at 333 . As the opinion in that case further states, the law courts presume as a prerequisite to contribution, a contract between the tortfeasors. This is an accurate statement of the law at that time, but it must be remembered that the promise between joint tort-feasors, the implied assumpsit, was no more than a fiction — a procedural formalism made necessary by the rigid common law forms of action. Battersey’s Case, supra; Betts v. Gibbins, supra; Wooley v. Batte, supra. If a party pled the promise properly, and otherwise proved his case, he obtained contribution at law regardless of whether a promise actually had been made by the contributing joint tort-feasor. It is no answer simply to say that contribution is equitable. As merciful or fair, contribution is equitable. Also, as a remedy available in equity, contribution is equitable in the strictly technical sense of the word. The crucial matter, however, with respect to the Seventh Amendment, is that contribution was as of 1791 concurrently available at law, and trials at law were trials by jury.