Davidson v. Welch
| Decision Date | 27 February 1969 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Jack R. DAVIDSON and Edward Strain, Cross-Complainants and Appellants, v. Vancel S. WELCH, Cross-Defendant and Respondent. Civ. 24968. |
Bell & Cox, Ukiah, for appellants.
Leo M. Cook, Ukiah, for respondent.
In this action for declaratory relief, an employer-lessee appeals from a judgment which denied it indemnification from an employee-lessor for damages granted a customer for an intentional tort inflicted by the employee on the customer in the course of his employment, and which ordered it to indemnify and save harmless the employee-lessor. 1 The employer contends that it was only vicariously liable for the act of the employee, and therefore was entitled to indemnity from him; that no exculpation of the employee's duty to indemnify the employer can be found in a fair construction of the parties' written contract; that the trial court's construction of the contract to require indemnification against wilful personal liability was against both the evidence and the law; and that there is no evidence of any other agreement or circumstances that could obligate the employer to indemnify the employee against his liability for the wilful personal injury.
An examination of the legal principles applicable to the singular relationship entered into between the parties to this case leads to the conclusion that although the employee would generally be liable to indemnify his employer for the vicarious liability imposed upon the latter, the particular contract entered into between the parties in this case, when construed in the light of their relationship at the time they entered into it, required the employer to provide for the employee's indemnification, and, as so construed, is not against public policy. The judgment must be affirmed.
In August 1963, Vancel L. Welch, the cross-defendant and respondent who is referred to as the employee-lessor, owned, with his wife, a garage premises in which he conducted a paint and body shop. As a result of negotiations, which are more particularly detailed below, on August 23, 1963, he entered into a lease and employment agreement with Arrow Chevrolet, a limited partnership.
On July 31, 1964, one Shoberg, who had a car in the shop for extensive repairs, and Welch, who was working in the shop, got into an altercation concerning the removal of the car from the premises. In January 1965, Shoberg filed suit against Arrow and Welch to recover damages for injuries resulting from an alleged assault by Welch the previous July. In a first cause of action he alleged that Arrow was negligent in hiring Welch because it knew he was an individual of known pugnacious, vicious and dangerous temperament, and in a second cause of action he alleged that Arrow had ratified the conduct of its employee. He sought general and special damages against both Arrow and Welch, and punitive damages against Welch. The incident had been reported to Arrow's liability insurer. After the institution of the action the insurer refused the demand of Welch's attorney that it undertake his defense. Welch's answer admitted his employment, and that the premises were under the control of Arrow. He denied the injury and damages, and affirmatively alleged that he acted in self-defense. Arrow's answer admitted Welch's employment and its operation of the premises. It further alleged that the victim negligently provoked and wrongfully assaulted Welch.
Arrow also filed a cross-complaint in declaratory relief seeking indemnity from Welch for the cost of defending the suit and for any damages which might be assessed. 2 By his amended answer to the cross-complaint, Welch denied any liability to Arrow and claimed a right to indemnity, first as arising out of his employment because he allegedly acted on his employer's behalf, and, second, under the terms of the lease and employment agreement.
The issues raised by the original complaint and those raised by the cross-complaint were severed for trial by the pre-trial order. The latter issues were tried and a decision in favor of Welch was ordered by one judge prior to the trial, before a second judge, of the merits of the victim's claim. The latter trial resulted in a verdict and judgment which awarded the victim $10,000 from Welch and Arrow, and denied him any punitive damages. Settlement of the findings on the indemnity phase of the action had been delayed until after the trial on the tort claim. In its ultimate findings the court purported to take judicial notice of the other proceedings. It is, therefore, appropriate to consider the portion of the reporter's transcript of the tort action which Arrow requested, and which, without objection, has been made part of the record of this appeal. From this record it appears that the victim abandoned any claim that Arrow itself was negligent. Arrow conceded that whatever dispute occurred was job-concerned, and that it was liable whether Welch's acts were negligent or intentional. The case was thereupon submitted to the jury on the sole issue of whether Welch acted in self-defense. The jury was advised by the form of the verdict, and in response to an express question, that Arrow would be jointly liable for any compensatory damages assessed against Welch.
The uncontradicted evidence at the indemnity trial demonstrated that Arrow never authorized or ratified the use of physical force against its customer by Welch.
The employer's right to indemnity
In its findings the trial court recognized that one of the two principal contentions of Arrow was that the employee owed his employer a duty to indemnify and hold the latter harmless from 'all expenses, costs of suit, legal fees, damages, judgments, or other claims or awards.' The court concluded that Arrow did not establish this contention by a preponderance of the evidence. The employer-lessee objected to these findings. Insofar as there is implicit in the court's findings a conclusion that, irrespective of the agreement, the employer was not entitled to indemnity, the findings and conclusions are erroneous.
'Where a judgment has been rendered against an employer for damages occasioned by the unauthorized negligent act of his employe, the employer may recoup his loss in an action against the negligent employe (Popejoy v. Hannon (1951) 37 Cal.2d 159, 173 (19), 231 P.2d 484; Bradley v. Rosenthal (1908), 154 Cal. 420, 423, 97 P. 875; Johnston v. City of San Fernando (1939), 35 Cal.App.2d 244, 246, 95 P.2d 147; Myers v. Tranquility Irr. Dist. (1938), 26 Cal.App.2d 385, 389, 79 P.2d 419; Ledgerwood v. Ledgerwood (1931), 114 Cal.App. 538, 542--543, 300 P. 144; Rest., Restitution, 418--419, § 96; 35 Am.Jur. 530--531, § 101; 56 C.J.S., Master and Servant, § 79, p. 502; see also Aynes v. Winans (1948), 33 Cal.2d 206, 208--209, 200 P.2d 533); that is, as between employer and employe in such a situation, the obligation of the employee is primary and that of the employer secondary.'
It is recognized that the right to indemnity which is implied from the relationship of the parties may be lost if the indemnitee is himself guilty of serious wrongful conduct. (See Rest., Restitution, § 88, subd. b, p. 394 and Comment, pp. 395--396; Goldman v. Ecco-Phoenix Elec. Corp. (1964) 62 Cal.2d 40, 44, 41 Cal.Rptr. 73, 396 P.2d 377; Bradley v. Rosenthal, supra, 154 Cal. 420, 426--427, 97 P. 875; Lewis Ave. Parent Teachers' Assn. v. Hussey, supra, 250 Cal.App.2d 232, 236, 58 Cal.Rptr. 499; Aerojet General Corp. v. D. Zelinsky & Sons, supra, 249 Cal.App.2d 604, 608, 57 Cal.Rptr. 701; Herrerro v. Atkinson, supra, 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490; and Davison v. Diamond Match Co., supra, 10 Cal.App.2d 218, 221--222, 51 P.2d 452; and Witkin, Op. cit., § 66, pp. 438--439.) In this case the original complaint charged the employer with negligence in hiring employee, but as has been observed, this cause of action was not submitted to the jury, and the liability of the company was predicated solely on the vicarious liability of an employer for the tort of his employee. The mere allegations of the victim's complaint cannot establish the employer's independent negligence. (See Bradley v. Rosenthal, supra; and Lewis Ave. Parent Teachers' Assn. v. Hussey, supra.) Moreover, the evidence in the indemnity action establishes that the employer never authorized or ratified the violent action of the employee. (See Davision v. Diamond Match Co., supra.)
The employee relies upon the principle expressed in Labor Code, section 2802, as follows: 'An employer shall indemnify his employee for all that the employee necessarily expends or loses in direct consequence of the discharge of his duties as such, or of his obedience to the directions of the employer, even though unlawful, unless the employee, at the time of obeying such directions, believed them to be unlawful.' ...
To continue reading
Request your trial
-
Clemmer v. Hartford Ins. Co.
...itself. (Evans v. Pacific Indemnity Co., supra, 49 Cal.App.3d 537, 540, 122 Cal.Rptr. 680, and cases cited.) In Davidson v. Welch, 270 Cal.App.2d 220, 75 Cal.Rptr. 676, a 'wilful act' as used in section 533 was defined at page 233, 75 Cal.Rptr. at page 684 as: "A 'wilful act' as used in thi......
-
Mesa Underwriters Specialty Ins. Co. v. Blackboard Ins. Specialty Co.
...may exist when any portion of the causal series of events leading to the injury or damage was unintended); Davidson v. Welch, 270 Cal.App.2d 220, 234, 75 Cal.Rptr. 676 (1969) ("[i]f the broad charge made, which claims an intentional or willful tortious act, contains within it the potentiali......
-
E. L. White, Inc. v. City of Huntington Beach
...Elec. Corp. (1964) 62 Cal.2d 40, 44, 41 Cal.Rptr. 73, 396 P.2d 377, and cases therein cited; see also Davidson v. Welch, supra, 270 Cal.App.2d 220, 228-232, 75 Cal.Rptr. 676), in the absence of this a provision will be construed to provide indemnity to the indemnitee only if he has been no ......
-
Douglas v. Los Angeles Herald-Examiner
...the section in any detail. Earll v. McCoy, 116 Cal.App.2d 44, 253 P.2d 86 is not helpful. However, Davidson v. Welch, 270 Cal.App.2d 220 at 227, 75 Cal.Rptr. 676, 681, footnote 3 Section 2802 was enacted in 1937 based upon former Civil Code section 1969 'without substantial change.' In the ......