American Can Co. v. City and County of San Francisco

• Decision Date: 18 April 1962
• Citation: 21 Cal.Rptr. 33,202 Cal.App.2d 520
• Parties: AMERICAN CAN CO., a New Jersey corporation, and Elmo Piombo, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Respondent. Civ. 20112.
• Court: California Court of Appeals Court of Appeals

Page 33

21 Cal.Rptr. 33

202 Cal.App.2d 520

AMERICAN CAN CO., a New Jersey corporation, and Elmo Piombo, Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Defendant and Respondent.

Civ. 20112.

District Court of Appeal, First District, Division 2, California.

April 18, 1962.

Sedgwick, Detert, Moran & Arnold, San Francisco, for appellants.

Dion R. Holm, City Atty., R. J. Reynolds, Deputy City Atty., San Francisco, for respondent.

SHOEMAKER, Justice.

On September 17, 1959, Elmo Piombo, while driving a truck owned by the American Can Co., collided with a Municipal Railway tower truck which was parked in the intersection of 16th Street and Potrero Avenue in San Francisco. As a result of this collision, John Murphy and Harry Jones, two employees of the City and County of San Francisco, were thrown from the tower truck and injured. Murphy and Jones thereupon instituted a negligence action against Piombo and the American Can Co. to recover damages for the injuries sustained by them. Piombo and American Can filed a cross-complaint naming the City and County of San Francisco as cross-defendant and asserting that the accident was primarily caused by the negligence of the cross-defendant, or its agents, servants and employees. The cross-defendant then filed a demurrer and a motion to strike the cross-complaint. After the matter had been argued and briefed by the parties, the trial court granted the motion to strike the cross-complaint. ¹

Piombo and American Can did not appeal from said order, and acquiescing therein, commenced a separate action against the City and County of San Francisco. The complaint set forth the same acts of negligence previously enumerated in the cross-complaint, and prayed for a declaration that defendant City and County of San Francisco was under a duty to indemnify plaintiffs for any judgment or costs which might be assessed against them in the action brought by Murphy and Jones. Defendant moved to strike the complaint on the ground that it attempted indirectly to impose on defendant a greater liability ot its employees, Murphy and Jones, then that provided by the California Workmen's Compensation Act; and further, that plaintiffs had failed to allege any contractual right to indemnity as required by law. The trial court granted defendant's motion, and plaintiffs now appeal from the order striking their complaint. (Such an order is appealable as a final determination of the rights of the parties in an action or proceeding. Honan v. Title Insurance etc. Co. (1935) 9 Cal.App.2d 675, 677, 50 P.2d 1068; Witczak v. Johnson (1956) 146 Cal.App.2d 599, 303 P.2d 1091.)

Appellants contend that their complaint set forth a cause of action on two distinct theories: (1) implied indemnity on the ground that respondent's negligence was the primary cause of the accident and the resulting injuries for Murphy and Jones; and (2) liability of respondent pursuant to Government Code, section 53051, for injuries resulting from the dangerous or defective condition of public property.

In order to dispose of appellants' contention that the complaint states a cause of action for 'implied indemnity,' it becomes necessary to review certain developments in the California law regarding contribution among joint tortfeasors. Prior to 1957, when the Legislature enacted sections 875-880 of the Code of Civil Procedure, the normal common-law rule, although subject to certain exceptions, was that one joint tortfeasor could not seek contribution or indemnity from another. Pursuant to Code of Civil Procedure, section 875, a limited right to contribution became available 'Where a money judgment has been rendered jointly against two or more defendants in a tort action * * *.' Where this section is not applicable, however, the general common law prevails and the party seeking contribution must bring himself within one of the exceptions to the rule. In the case at bar, appellants are clearly not seeking contribution pursuant to Code of Civil Procedure, section 875, since no money judgment has been rendered jointly against appellants and respondent. Indeed, appellants themselves expressly negate any such assumption. ²

The question thus presented is whether the allegations of the complaint are sufficient to bring appellants within one of the recognized exceptions to the common-law rule against contribution. Appellants assert that a right to contribution or indemnity may exist independent of any express contract between the parties and may arise from the fact that one party is guilty of 'active' negligence, while the other is merely 'passively' negligent. It is appellants' position that such a situation gives rise to an implied obligation on the part of the actively negligent party to indemnify his fellow tortfeasor for all damages which may be assessed against him. In support of this contention, appellants rely upon City & County of San Francisco v. Ho Sing (1958) 51 Cal.2d 127, 330 P.2d 802, and Alisal Sanitary Dist. v. Kennedy (1960) 180 Cal.App.2d 69, 4 Cal.Rptr. 379.

Appellants tell us that the Ho Sing and Alisal cases require the application of the 'implied indemnity' doctrine to their complaint. Respondent, on the other hand, urges that these two decisions are readily distinguishable from the instant case because they involved special permit and contractual relationships existing between the two tortfeasors, whereas appellants' complaint, at best, sets forth a speculative tort relationship arising out of an alleged distinction between passive and active negligence. Respondent further argues that even if the Alisal and Ho Sing cases can be said to lend support to such a theory, an employer such as itself who has obtained Workmen's Compensation insurance cannot be made indirectly liable to its employees by way of an indemnity action in the absence of an express or implied contract to indemnify the third party tortfeasor. As a final argument, respondent directs this court's attention to Labor Code, section 3864, which provides that if an employee recovers judgment against a third party, the employer, if he has secured compensation insurance, shall have no liablility to reimburse or hold such third person harmless on such judgment in the absence of a written agreement so to do executed prior to the injury. Respondent concedes that this statute did not become effective until September 18, 1959, the day after the accident occurred, but asserts that it ought to be applied retrospectively because it is merely remedial in effect and disturbs no substantive or vested right of appellants. We do not agree with this argument. Any liability of respondent to appellants arose on September 17, 1959, when the accident occurred. If, on that date, the decisional law of California was such as to allow a right of indemnity between the parties, the retrospective application of a statute altering respondent's liability would clearly have a material effect on the substantive rights of the parties. In any event, the rule is well established that a statute is presumed to be prospective only in operation and will not be applied retroactively unless such intention clearly appears from the language of the statute itself. (Krause v. Rarity (1930) 210 Cal. 644, 655, 293 P. 62, 77 A.L.R. 1327.) Section 3864 contains no language which would justify the conclusion that it was intended to operate retrospectively.

An examination of the California decision which have allowed indemnity between tortfeasors rather clearly reveals however, that appellants have failed to state a cause of action. Respondent would appear to be correct in contending that the cases relied upon by appellants do not support the conclusion that the distinction between 'active' and 'passive' negligence is of itself a sufficient basis for an implied duty to indemnify. Both the Ho Sing and the Alisal cases, as respondent properly points out, involved special relationships between the parties. In the former case, the court based its holding on the special licensor-licensee relationship between the parties, and on the well established rule of other jurisdictions that a municipality has a right of action over against the landowner whose negligent act has caused the city to become liable to a member of the general public. In the Alisal case, the...