City of Sacramento v. Superior Court In and For Sacramento County

• Decision Date: 02 July 1962
• Court: California Court of Appeals Court of Appeals
• Parties: CITY OF SACRAMENTO, a Municipal Corporation, and James K. Jackson, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent, Gerald K. SMITH, Carl L. Kelsey, State Compensation Insurance Fund, Real Parties in Interest. Civ. 10514.

Page 43

23 Cal.Rptr. 43

205 Cal.App.2d 398

CITY OF SACRAMENTO, a Municipal Corporation, and James K. Jackson, Petitioners, v. SUPERIOR COURT of the State of California, IN AND FOR the COUNTY OF SACRAMENTO, Respondent Gerald K. SMITH, Carl L. Kelsey, State Compensation Insurance Fund, Real Parties in Interest.

Civ. 10514.

District Court of Appeal, Third District, California.

July 2, 1962.

Hearing Denied Aug. 29, 1962.

Fitzwilliam, Memering & McDonald, M. H. Pothoven, Sacramento, for appellant.

Kenneth Cayocca, Sacramento, and Francis T. Cornish, Berkeley, for real party in interest Smith.

T. Groezinger, Loton Wells, Charles M. McMillan, San Francisco, for real party in interest State Compensation Ins. Fund.

Carl Kelsey, in pro. per. for real party in interest.

PIERCE, Justice.

Petitioners, defendants in a personal injury action seek a writ of mandamus to compel joinder of plaintiff's employer Carl L. Kelsey and the latter's compensation carrier as parties.

According to the complaint on file in the action plaintiff Gerald Smith, on December 21, 1960, while painting one of the city's street lamp posts, was injured when a motor sweeper operated by a city employee, defendant James K. Jackson, came in contact with a ladder on which plaintiff was standing, causing it to fall.

On February 21, 1961, the action for personal injuries was filed in the Superior Court of Sacramento County by Smith against the City of Sacramento. An answer was filed on behalf of both defendants. The case was pretried in January, 1962. On April 5, 1962, a motion by defendants was made and heard, seeking a court order to bring in as parties to the action one Carl L. Kelsey, admittedly plaintiff's employer at the time of the accident, and also to bring in California State Compensation Insurance Fund, Kelsey's workmen's compensation insurance carrier. The theory of the motion was that plaintiff Smith had been injured in the course and scope of his employment; that he had received certain workmen's compensation benefits paid by insurer (both of which facts are admitted); that said employer, Kelsey, had been guilty of concurrent negligence proximately contributing to the accident; that such fact, if proved, would necessitate a reduction in any judgment recovered by plaintiff against defendants by the amount of said compensation benefits paid; and that therefore said employer and his insurer were necessary parties to the action to test the right of defendants to such deductions. The method sought to accomplish this was by the filing of a cross-complaint.

This was the second motion in the action aimed to test the matter. A previous motion in another department had been denied. After such denial, however, the case of Witt v. Jackson, 57 A.C. 57, 17 Cal.Rptr. 369, 366 P.2d 641, came to defendants' notice and prompted the second try. The Witt case asserts the rule that a third party sued by an injured employee is entitled to have the judgment against him reduced by the amount of compensation paid to the injured employee if he can prove concurrent contributing negligence of the employer. Detailed discussion of the Witt decision will follow our consideration of preliminary questions raised.

The court denied the second motion to bring in the employer and his insurer. The basis of the court's ruling was not inapplicability of Witt v. Jackson, supra. It was grounded upon an insufficiency of the showing that a justiciable issue of concurrent negligence of the employer had been made.

The petitioners' position is that merely because the affidavit supporting their motion alleged that the employer was concurrently negligent, proximately contributing to the accident, it became a mandatory duty of the trial court to grant their motion.

With this we cannot agree. An employer does not become either an 'indispensable' or 'conditionally necessary' party (see Code of Civ.Proc. sec. 389) unless and until there is a satisfactory showing that a justiciable issue can be raised that said employer has been concurrently and contributorily negligent. Litigants do not have an absolute right to stall the orderly progress of litigation already at issue and en route to trial (and particularly pretried cases) by unseasonable 'Johnny-comelately' demands to bring in new parties and raise new issues. Code of Civil Procedure section 442 provides that where a party seeks to cross-complain after the original joinder of issues by answer he may do so only 'by permission of the court.' This provision imposes a discretion in the court. (Nels E. Nelson, Inc. v. Tarman, 163 Cal.App.2d 714, 730, 329 P.2d 953.)

In the original return to the alternative writ filed here by plaintiff, insufficiency of the showing before the trial court was urged as a ground for denial of the writ. At the oral argument, however, it was conceded and stipulated that petitioner had made a sufficient showing of a justiciable issue on the employer's concurrent negligence to entitle defendant to be heard on the merits of his motion. Therefore, since the motion was made promptly after the rule of Witt v. Jackson was announced and since the question of its applicability to the circumstances presented here is both important and urgent, we are constrained to accept the parties' stipulation that a triable issue of concurrent contributory negligence exists and to attack the problem of whether: (1) it constitutes a pro tanto defense, and (2) it is triable by joinder of, and cross-complaint against, the employer and his insurer in the original action on the merits. This brings us to a consideration of the Witt case.

It was an action for personal injuries by two Los Angeles police officers, injured in the course of performance of their duties when their 'prowl' car was struck from the rear by an automobile driven by defendant. The city had voluntarily joined as a plaintiff, claiming the right to recover from the defendant the amount of its workmen's compensation payments to both plaintiffs. The question there involved was whether the contributory negligence of the plaintiff-driver also barred the right of the city to recover from the (assumed) negligent defendant for the compensation payments to the non-negligent police officer. The majority opinion by Mr. Justice Traynor on this phase of the case (commencing on 57 A.C. p. 70, 17 Cal.Rptr. 369, 366 P.2d 641) states that no indication can be gleaned from the Labor Code itself as to the right of a concurrently negligent employer to reimbursement from a third party tort-feasor; that in Finnegan v. Royal Realty Co., 35 Cal.2d 409, 218 P.2d 17, it had been held that a defendant (a third party tort-feasor) in a personal injury action by an employee was not entitled to have the judgment reduced by the amount of compensation received from the carrier of a 'grossly negligent' employer; that in so holding the court in Finnegan had relied upon Pacific Indemnity Co. v. California Electric Works, Ltd., 29 Cal.App.2d 260, 84 P.2d 313, where the defense had been 'equated with an attempt to secure contribution between joint tortfeasors,' a doctrine inapplicable in California which follows the common-law rule denying such contribution. The opinion in Witt then pointed out (57 A.C. on p. 71, 17 Cal.Rptr. 369, 366 P.2d 641) that the California Legislature by enactment of Code of Civil Procedure sections 875-880 in 1957 had 'abrogated the rule of noncontribution' between joint tort-feasors, thus effectually rendering the Finnegan case obsolete by destroying the reason for its rule. Reverting to the specific question: Can a third party tort-feasor assert the concurrent negligence of the employer as a defense (pro tanto compensation payments), the Witt opinion eschews the majority jurisdiction rule that he cannot, espouses the 'North Carolina rule' of Brown v. Southern Ry. Co., 204 N.C. 668, 169 S.E. 419, and of Lovette v. Lloyd, 236 N.C. 663, 73 S.E.2d 886, 892) that the third party tort-feasor can assert the defense, based upon the reasoning (57 A.C. see p. 72, 17 Cal.Rptr. 369, 377, 366 P.2d 641, 649): "It is contrary to the policy of the law for the employer, or his subrogee, the insurance carrier, to profit by the wrong of the employer.' (73 S.E.2d at pp. 891-892.)' The Witt opinion concludes (57 A.C. at pp. 72, 73, 17 Cal.Rptr. 369, 366 P.2d 641):

'* * * This policy should prevail here since there is nothing in the Labor Code to suggest that the Legislature contemplated that a negligent employer could take advantage of the reimbursement remedies that those sections provide. In the absence of express terms to the contrary, these provisions must be deemed to be qualified by Civil Code, section 3517 which provides that 'No one can take advantage of his own wrong.' Thus, whether an action is brought by the employer or the employee, the third party tortfeasor should be able to invoke the concurrent negligence of the employer to defeat its right to reimbursement, since, in either event, the action is brought for the benefit of the employer to the extent that compensation benefits have been paid to the employee.' (Emphasis added.)

Real parties in interest seek comfort in the fact that in the Witt case the employer (self-insured) was an original party to the litigation, whereas here the employee alone sued and both the employer and his insurer will have to be brought...