Alisal Sanitary Dist. v. Kennedy

• Decision Date: 20 April 1960
• Docket Number: No. 18605,18605
• Citation: 180 Cal.App.2d 69,4 Cal.Rptr. 379
• Court: California Court of Appeals Court of Appeals
• Parties: ALISAL SANITARY DISTRICT, a corporation, Plaintiff and Appellant, v. Clyde C. KENNEDY, Engineering Office of Clyde C. Kennedy, James T. Scott, Defendants and Respondents.

Page 379

4 Cal.Rptr. 379

180 Cal.App.2d 69

ALISAL SANITARY DISTRICT, a corporation, Plaintiff and Appellant, v. Clyde C. KENNEDY, Engineering Office of Clyde C. Kennedy, James T. Scott, Defendants and Respondents.

No. 18605.

District Court of Appeal, First District, Division 1, California.

April 20, 1960.

Rehearing Denied May 13, 1960.

George F. Jansen, San Francisco, for appellant.

Wallace, Garrison, Norton & Ray, San Francisco, for respondent.

MOLINARI, Justice pro tem.

This is an appeal from a judgment in favor of the defendants following the sustaining of a demurrer to the complaint without leave to amend. Accepting the allegations of the complaint as true, the facts therein stated are as follows:

The plaintiff was a sanitary district organized pursuant to law which owned, maintained, and operated certain sewage disposal facilities in the county of Monterey. The defendants were engineers who represented and held themselves out as specialists, skilled, qualified, and experts in the design and construction of sewage treatment plants, sewers and drainage systems. During the years 1953, 1954 and 1955 and prior thereto the defendants were retained by the plaintiff for a consideration to design and supervise the construction in the county of Monterey of certain sewage treatment and disposal installations, including an outfall line which discharged sewage from plaintiff's plant in the city of Salinas into the Salinas River. In the latter half of the year 1955 the defendants recommended to plaintiff that said outfall line should be cleaned so as to increase its capacity to discharge sewage in said river and recommended the installation of additional manholes in said line to accomplish the cleaning operation. Relying upon said recommendation and the representations that defendants were specialists, skilled, qualified, and expert in the construction of sewage disposal systems, plaintiff retained defendants for a consideration to design and supervise the construction of said additional manholes in said outfall line, and defendants did, in the latter part of the year 1955, undertake to and did design and supervise the construction of 14 manholes in said line, including Manhole Number 12. The elevation of the sewage plant where the sewage entered the outfall line was 44 feet above sea level and the point of discharge of said line in the Salinas River was approximately 37 feet above sea level. The elevation above sea level of Manhole Number 12 was 43.02 feet. On December 24 and 25 of the year 1955, the elevation of the water in the Salinas River reached a point approximately 47 feet above sea level, causing sewage to back up in the outfall line and to be discharged from Manhole Number 12 to an adjacent field of celery owned by W. Ambrosini and Con Ferrasci. As a result of said discharge the field was inundated with sewage and the celery was destroyed. Ambrosini and Ferrasci filed an action in the county of Monterey against the plaintiff on the grounds of nuisance and inverse condemnation for damages for the destroyed crop of celery and recovered a judgment against plaintiff for $13,254.95. Said judgment is now final, having been affirmed by the District Court of Appeal on October 28, 1957 (Ambrosini v. Alisal Sanitary Dist., 154 Cal.App.2d 720, 317 P.2d 33), a hearing having been denied by the Supreme Court. Plaintiff has paid said judgment plus accrued interest in the sum of $323.57. The defendants were negligent in the engineering and design and in supervising the construction of said manholes, including Manhole Number 12, in said outfall line, in that they knew, or in the exercise of reasonable care should have known and anticipated, that the level of the Salinas River might and probably would exceed the level of 43.02 feet above sea level, with the consequence that sewage would be discharged from Manhole Number 12 onto adjoining property, unless said manholes were provided with sealed covers or unless the outlets thereof were constructed above the surface of the ground. The said manholes were not provided with sealed covers nor were the outlets thereof constructed above the surface of the ground. The defendants performed said engineering and design work and supervised the construction of said manholes in a careless and negligent manner, and failed to expertly, carefully, and skillfully perform said work which they had undertook to so do. The plaintiffs relied on the representations, skill and reputation of the defendants. By reason of the negligence of the defendants the plaintiff became obligated to pay the judgment and interest aforesaid and in addition paid the sum of $4,221.74 as attorney fees and costs in defending the action by Ambrosini and Ferrasci. Plaintiffs have demanded indemnity for their said damages totalling $17,800.26 from defendants who have failed and refused to pay said sum or any part thereof.

The question presented is whether or not the complaint states a cause of action for indemnity against the defendants. As heretofore noted the trial court sustained a demurrer to said complaint without leave to amend. A demurrer reaches only matters appearing on the face of the complaint and such matters as may be considered under the doctrine of judicial notice. Weil v. Barthel, 45 Cal.2d 835, 291 P.2d 30; Campbell v. Campbell, 157 Cal.App.2d 548, 321 P.2d 133; Griffith v. Department of Public Works, 141 Cal.App.2d 376, 296 P.2d 838. The allegations of the complaint must for the purposes of demurrer be accepted as true unless they are contrary to facts of which a court may take judicial notice. Hauger v. Gates, 42 Cal.2d 752, 269 P.2d 609; Watson v. Los Altos School Dist., 149 Cal.App.2d 768, 308 P.2d 872; Livermore v. Beal, 18 Cal.App.2d 535, 64 P.2d 987. The defendants contend not only that the complaint does not state a cause of action for indemnity on its face but that the record in the Ambrosini case of which they contend we are required to take judicial notice discloses facts at variance to those alleged in the complaint and such as to establish that as a matter of law there is no right of indemnity because the plaintiff and defendants were joint and concurrent tortfeasors who actively participated in the acts and conduct which caused the damage to Ambrosini and Ferrasci.

In order to place the question in its proper legal focus we must briefly review the law of this state with reference to contribution between joint tortfeasors, the exceptions to that rule, and the recognition of the fundamental distinction between the right to indemnity and the right to contribution. Prior to January 1, 1958, the law in California was the common-law rule that there was no right of contribution between joint tortfeasors. Dow v. Sunset Tel. & Tel. Co., 162 Cal. 136, 121 P. 379; City and County of San Francisco v. Ho Sing, 51 Cal.2d 127, 330 P.2d 802; San Francisco Unified School Dist. v. California Building Maintenance Co., 162 Cal.App.2d 434, 328 P.2d 785. The right to indemnity in certain situations in other jurisdictions was alluded to in Peters v. City and County of San Francisco, 41 Cal.2d 419, 260 P.2d 55, but the court was not called upon in that case to make a determination as to whether the right existed in this state. In 1957 the Legislature, by its enactment of section 875 of the Code of Civil Procedure, modified the common law to provide for contribution between joint tortfeasors effective as of January 1, 1958, on causes of action 'accruing on or after' that date. The distinction between the right of contribution and the right of indemnity was expressly recognized by the Legislature in subdivision (f) of said section 875 which provides: 'This title shall not impair any right of indemnity under existing law, and where one tortfeasor judgment debtor is entitled to indemnity from another there shall be no right of contribution between them.' The existence of the right of indemnity in this state was expressly recognized in the School District and Ho Sing cases, supra, determined in July and October, 1958, respectively, in causes of action arising prior to 1958. See also De La Forest v. Yandle, 171 Cal.App.2d 59, 340 P.2d 52.

The alleged cause of action in the present case arose prior to 1958; therefore the common-law rule against contribution applies. The question presented, however, is whether or not the plaintiff has a cause of action for indemnity. Both parties concede in their arguments that under the facts pleaded in the complaint the plaintiff and defendants were joint tortfeasors, but they disagree as to whether or not the facts come within the exceptions to the general rule of noncontribution which allow indemnity as between joint tortfeasors.

The exceptions to the general Rule of noncontribution find their basis in the fundamental difference between contribution and indemnity. The right of contribution, where it exists, presupposes a common liability which is shared by the joint tortfeasors on a pro rata basis. See Code Civ.Proc., §§ 875-880. The right of indemnity, on the other hand, because of some special relationship existing between two tortfeasors shifts the entire loss upon the one bound to indemnify. Frosser on Torts, 2d ed., § 46, P. 249. The distinction is well stated in Builders Supply Co. v. McCabe, 366 Pa. 322, at pages 325 and 326, 77 A.2d 368, at page 370, 24 A.L.R.2d 319, where the court said: 'The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his part, has been compelled, by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative...