51 Cal.2d 127, 19977, City & County of S. F. v. Ho Sing

CourtUnited States State Supreme Court (California)
Writing for the Court[10] Carter
Citation51 Cal.2d 127,330 P.2d 802
Docket Number19977
PartiesCity & County of S. F. v. Ho Sing

Page 127

51 Cal.2d 127

330 P.2d 802



HO SING et al., Respondents.

S. F. No. 19977.

Supreme Court of California

Oct. 24, 1958

In Bank.

Page 128


Dion R. Holm, City Attorney, and George E. Baglin, Deputy City Attorney, for Appellant. Bronson, Bronson &amp McKinnon and Frank E. Farrella for Respondents



This is an appeal by the city and county of San Francisco, a municipal corporation, from a judgment after defendants', Ho Sing and Ho Lum Shee, demurrer to its complaint had been sustained without leave to amend.

Mr. and Mrs. Ho purchased a building in San Francisco. Their predecessors in title had installed a sidewalk skylight in front of the building. This skylight was over a basement which was maintained by defendants Ho. During the course of defendants' possession of the building, the sidewalk skylight developed a crack two inches wide and 18 inches long. On August 24, 1952, one Mrs. Wagner tripped because of said crack and fell, breaking her hip. Mr. and Mrs. Wagner sued both the city and county of San Francisco and Mr. and Mrs. Ho for damages resulting therefrom (Wagner v. City & County of San Francisco et al., No. 423562) and recovered

Page 129

a final judgment against plaintiff city and defendants Ho in a total amount of $15,000 plus interest and costs. Plaintiff city paid Mrs. Wagner the sum of $5,000 plus $102.03 costs. Defendants paid Mrs. Wagner the sum of $10,000.

Plaintiff, in bringing this action, seeks to compel defendants to indemnify it in the sum of $5,258.87 ($5,000 plus costs and interest at 7%). As heretofore noted, the trial court sustained defendants' demurrer to plaintiff's complaint without leave to amend.

The only question involved is one of first impression in this state and may be stated as follows: Where an adjoining property owner for the exclusive benefit of his own property places in a public street or sidewalk some artificial structure and a city is compelled to pay compensation in damages to a member of the public injured thereby may the city recover the amount so paid from the property owner by way of indemnity?

This question was specifically left open in Peters v. City & County of San Francisco, 41 Cal.2d 419, 430 , where we said: "We are not presented with the problem whether the city might have a right over against the Duques in the event it pays the judgment and the jury returns a verdict against the property owners on a new trial, and nothing we say here should be taken as indicating our views on that matter." Both sides argue, however, that from certain statements made in the Peters case, there is, or is not, a right over against the property owner in the case at bar.

In the Peters case the plaintiff brought suit against both the city and the Duques, as property owners, for damages sustained by her from a fall occasioned by a ramp or slope extending from a building maintained by the Duques and which extended across the sidewalk and caused a depression therein. The jury found for the plaintiff against the city but against the plaintiff with respect to the Duques' liability. On appeal, we affirmed the judgment against the city and reversed that portion which exonerated defendant Duque from liability.

We held that: (1) "The rule is that an abutting landowner may be held liable for the dangerous condition of portions of the public sidewalk which have been altered or constructed for the benefit of his property and which serve a use independent of and apart from the ordinary and accustomed use for which sidewalks are designed"; (2) "The duty to maintain portions of a sidewalk which have

Page 130

been altered for the benefit of the property runs with the land, and a property owner cannot avoid liability on the ground that the condition was created by or at the request of his predecessors in title"; (3) "The city is under a duty to keep sidewalks in safe condition, it is directly liable to pedestrians for failing to correct a dangerous condition of which it had notice, and it is not relieved of its responsibility in this regard merely because the condition was created or maintained by a property owner who might also be liable to pedestrians for injuries resulting therefrom"; and (4) "With regard to persons who are injured by such a condition, the city and the landowner are joint or concurrent tort feasors; each is directly liable for his own wrong and each may be held liable for the entire damage suffered." (Emphasis added; Peters v. City & County of San Francisco, 41 Cal.2d 419, 423, 427, 429 , and cases there cited.)

From the emphasized portion (4) set forth above, defendants argue that since the abutting property owner and the city are joint, or concurrent, tortfeasors, the long established rule in this state against contribution between joint tortfeasors applies. The city, on the other hand, argues that this is not a question of contribution but of indemnity. We said in the Peters case that "Even if such a right to contribution or indemnity were recognized, however, it would not mean, as asserted by the city, that its liability to pedestrians is merely dependent or derivative from that of the landowner and not joint or direct. As noted above, the rule against contribution between joint tort feasors admits of some exceptions, and a right of indemnification may arise as a result of contract or equitable considerations and is not restricted to situations involving a wholly vicarious liability, such as where a master has paid a judgment for damages resulting from the voluntary act of his servant." (41 Cal.2d 419, 430, 431.) The city contends that when an abutting landowner makes an unusual use of the public streets for his own private benefit it is with the permission, either express or implied, of the municipality; that such permission carries with it an implied condition that the landowner will exercise due care for the safety of the public and that it will hold the city harmless for any damages occasioned by the lack of due care. In other words, indemnity, as distinguished from contribution, exists because of some special relationship existing between the two tortfeasors and the entire loss is

Page 131

shifted to the one bound to indemnify. (Prosser on Torts, 2d ed., section 46, p. 249.) In Runyon v. City of Los Angeles, 40 Cal.App. 383, 389 , it was held: "The abutting owner, whose title extends to the center of the street, may excavate a vault or cellar under the sidewalk. Such owner, with permission of the city authorities, express or implied--implied or inferred where, after a reasonable time, no objection has been made by the proper officials--may insert in the sidewalk, for the purpose of admitting light and air to the vault or cellar, an iron grating, or other similar device, if safely and properly constructed, and such contrivance in the sidewalk is not a nuisance per se. (Rider v. Clark, [132 Cal. 382 ()] supra; Morrison v. Avoy, 7 Cal. Unrep. 37 ; Hirsch v. James S. Remick Co., 38 Cal.App. 764 ; Fisher v. Thirkell, 21 Mich. 1 [4 Am.Rep. 422].)"

The City's Argument

It is the position of the city that in the absence of conflict with the constitutional or statutory law of this state, the common law prevails (Civ. Code, section 22.2; Cole v. Rush, 45 Cal.2d 345, 355 [54 A.L.R.2d 1137]) and that the common law is consistent throughout the United States that indemnity is allowed in such a situation as we have here.

The city cites many cases from out-of-state courts in which indemnity has been allowed. The theories relied on by such courts have differed as has been heretofore noted by us in the Peters case. We said there: "The opinions in those cases, however, recognize that the city has an independent duty to correct dangerous conditions of which it has notice, regardless of who created them, and the term 'secondary' is not used therein to indicate that the city is merely liable vicariously for the negligence of the landowner. Instead, it appears that the term is used as a means of indicating that, in the jurisdiction where the case arose, a city has a right to be indemnified by a landowner in the event it is compelled to pay damages resulting from a dangerous condition he created or maintained and for which he would be liable to pedestrians. In this regard it may be noted that a number of jurisdictions which adhere to the view that the city and the landowner are joint or concurrent tort feasors make an exception to the general rule against contribution between joint wrongdoers and hold that a municipality has a right to be indemnified by the property owner in such a situation. (Chicago v. Robbins, 67 U.S. 418,

Page 132

422-423, 425 [17 L.Ed. 298, 302-303]; Washington Gaslight Co. v. District of Columbia, 161 U.S. 316 [16 S.Ct. 564, 568, 40 L.Ed. 712]; Salt Lake City v. Schubach, 108 Utah 266 [157-158, 160 A.L.R. 809, 821-822]; City of Tuscaloosa v. Fair, 232 Ala. 129 [167 So. 276, 279.]; Gulf, Mobile & Ohio R. Co. v. Arthur Dixon Transfer Co., 343 Ill.App. 148 [98 N.E.2d 783, 785]; 19 McQuillin, Municipal Corporations [1950], section 54.19, pp. 91-94; Prosser on Torts [1941], p. 1116; 1 Freeman on Judgments [5th ed.], section 477, p. 980.)" (41 Cal.2d 419, 430.)

In Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 325, 327, 328 [16 S.Ct. 564, 40 L.Ed. 712], the district had given the gas company permission, for which it was paid a dollar, to open the sidewalk to install a gas box which contained a cock in the service pipe. The box had an iron cover which when locked in place was flush with the surface of the sidewalk. After the installation of the box, the district caused the sidewalk to be widened so that the box was approximately in the center thereof. The gas box was left open by the company and a pedestrian fell as a result thereof and was injured. She brought suit against the district and recovered a...

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