Degen v. Bayman, 10888

• Decision Date: 10 August 1972
• Docket Number: No. 10888,10888
• Citation: 86 S.D. 598,200 N.W.2d 134
• Parties: William J. DEGEN, a Minor by Elizabeth Degen, his General Guardian, Plaintiff and Respondent, v. Donald BAYMAN, Defendant and Third Party Plaintiff and Respondent, and Outboard Marine Corp., a Delaware Corporation, Defendant and Third Party Defendant and Appellant.
• Court: South Dakota Supreme Court

Page 134

200 N.W.2d 134

86 S.D. 598

William J. DEGEN, a Minor by Elizabeth Degen, his General Guardian, Plaintiff and Respondent, v. Donald BAYMAN, Defendant and Third Party Plaintiff and Respondent and Outboard Marine Corp., a Delaware Corporation, Defendant and Third Party Defendant and Appellant.

No. 10888.

Supreme Court of South Dakota.

Aug. 10, 1972.

Rehearing Denied Sept. 6, 1972.

George Beal Law Offices, Rapid City, for defendant and third party defendant and appellant.

Hanley, Wallahan, Driscoll & Murray, Rapid City, for plaintiff and respondent.

Costello, Porter, Hill, Banks & Nelson, Rapid City, for defendant and third party plaintiff and respondent.

FOSHEIM, Circuit Judge.

On July 28, 1968, the families of a Little League Baseball team were engaged in an outing at Sheridan Lake in Pennington County. The recreation included water-skiing. One of the boats involved was a 1968--210 h.p. inboard-outboard manufactured by the defendant Outboard Marine Corp., operated by the defendant Donald Bayman and owned by his employer. Bayman had operated the boat at least twice before that date. He also had been driving it for some time the day of the accident. It used an automatic, push-button, electric transmission control which was mounted in connection with a throttle control lever on the right side of the boat. The shift positions were 'Forward', 'Neutral' and 'Reverse'. The boat came to a stop some distance from shore in deep water. William J. Degen, one of the ball players, then fourteen years of age, swam out to the boat to water-ski. He positioned himself 14 to 45 directly behind the boat. It was then discovered that this boat had no towrope, and Bayman prepared to move out.

He asked young Degen if he was 'out of the road' or 'clear of the prop'. Billy answered that he was all right if the boat didn't back up. Without checking to see whether the gears were engaged, Bayman started the engine. The boat paused and then went backward. While it was moving a passenger in the boat shouted at least twice not to back up. However, Bayman did not turn off the ignition or shift from reverse until the boat had passed over Degen. The propeller caused severe injury to Billy's legs.

Bayman did not recall whether the boat was in gear when he started the engine or if he inadvertently shifted into reverse. He did not know the boat was designed to start in gear as well as neutral. There was no evidence of any malfunction.

During the summer of 1966, while the defendant Outboard Marine was finalizing the engineering and design of its 1968 models, it concluded the design unsafe which permitted this powerful motor to be started while the transmission was in gear and the throttle open. This was about one year before the 1968 model boats were put into production. Notwithstanding this recognition, Outboard Marine did not change the design and proceeded to manufacture and market the 1968 models. Minor changes would have assured the motor starting only while in neutral gear. The operator's manual was printed after the company had concluded the design was not advisable for safety reasons. However, the manual gave no warning of this hazard. Likewise, no warnings to dealers or call-backs were issued. 'Caution' plates or decals were affixed at conspicuous places as to other hazards, but none concerning the danger of starting the boat in gear, particularly with the throttle open. ¹

Over the objection of defendant Outboard Marine, the trial court submitted the issue of indemnity to the jury. The jury returned a substantial verdict in favor of plaintiff and against both defendants. They also found the defendant Bayman was entitled to be indemnified by the defendant Outboard for all damages. Outboard claims Bayman was not entitled to indemnity as a matter of law and that its motion to dismiss Bayman's claim therefore should have been granted.

Contribution and indemnity are remedies to secure restitution. Although similar in nature and having a common basis in equitable principles, they differ in the kind and measure of relief provided. Contribution requires the parties to share the liability or burden, whereas indemnity requires one party to reimburse the other entirely. ² Contribution is appropriate where there is a common liability among the parties, whereas indemnity is proper where one party has a greater liability or duty which justly requires him to bear the whole of the burden as between the parties. Hendrickson v. Minnesota Power & Light Company, 258 Minn. 368, 104 N.W.2d 843. The principle of indemnity is expressed in 41 Am.Jur.2d, Indemnity, § 20:

'Accordingly, it is generally held that a person who, without fault on his own part, has been compelled to pay damages is entitled to recover indemnity where, as between the parties to the indemnity action, the defendant is primarily liable ³ while the plaintiff is only secondarily liable--that is, where the plaintiff is only technically or constructively liable to the injured party, or where his liability was based on a legal or contractual relationship with the defendant. In other words, a joint tortfeasor may recover indemnity where he has only an imputed or vicarious liability for damage caused by the other tortfeasor.' ⁴

Also see Annotation 88 A.L.R.2d 1356 § 2, and Larson v. City of Minneapolis, 262 Minn. 142, 114 N.W.2d 68.

In Millard v. Baker, 76 S.D. 529, 81 N.W.2d 892, Judge Rudolph writing for this Court said:

'The rule is set forth in Restatement, Restitution, Sec. 96, as follows: 'A person who, without personal fault, has become subject to tort liability for the unauthorized and wrongful conduct of another, is entitled to indemnity from the other for expenditures properly made in the discharge of such liability.' In Comment 'a' to said Sec. 96, it is stated that the rule applies where by statute the owner of a motor vehicle, without fault, is made liable for the negligence of another who drives the motor vehicle with the owner's permission.'

And in 42 C.J.S. Indemnity § 21, p. 598, it is stated,

'* * * the owner of a motor vehicle who has been subjected to liability to a person injured through its operation, under a statute imposing such liability by virtue of his ownership, is, although the statute does not so provide, entitled to be indemnified by the wrongdoer.'

Thus, a joint tortfeasor is without personal fault when he has not participated in the commission of the tort and his liability arises by operation of law. Pelkey v. State Sales, Inc., D.C.Mich., 210 F.Supp. 924.

As applied to product liability, see Annotation 28 A.L.R.3d 946.

Conversely, before a joint tortfeasor can shift one hundred precent of the recovery upon another joint tortfeasor, he must show a proportionate absence of contributing negligence on his part.

It is generally held that where joint tortfeasors are in pari delicto--that is, where each is chargeable with active or affirmative negligence contributing to the injury, neither is entitled to indemnity from the other although contribution may be available. 41 Am.Jur.2d, Indemnity, § 21.

An act of omission as well as one of commission on the part of a joint tortfeasor contributing to the injury may constitute active negligence precluding his recovery of indemnity where he is under an affirmative duty to act. Bernstein v. ElMar Painting & Decorating Co., 13 N.Y.2d 1053, 245 N.Y.S.2d 772, 195 N.E.2d 456, and 41 Am.Jur.2d, Indemnity, § 21.

If a person seeking indemnity personally participates in an affirmative act of negligence, or is physically connected with an act of omission by knowledge or acquiescence in it on his part, or fails to perform some duty in connection with the omission which he has undertaken, he is deprived of the right of indemnity. Cahill Brothers, Inc. v. Clementina Company, 208 Cal.App.2d 367, 25 Cal.Rptr. 301; Pearson Ford Company v. Ford Motor Company, 273 Cal.App.2d 269, 78 Cal.Rptr. 279.

In South Austin Drive-In Theatre v. Thomison, Tex.Civ.App., 421 S.W.2d 933, 28 A.L.R.3d 911, the leg of a six-year-old boy was severed by the rotary blade of a riding power mower. An employee of the theatre was operating the mower when the injury occurred. The operator was found negligent for failing to exercise due care in controlling the power mower, knowing that another person, in this instance a small child, was present and in the immediate vicinity of the machine. He stopped the mower and without looking backward reversed the machine, thereby causing the mower to collide with the child. The manufacturer of the machine was found negligent in design. It was manufactured for use by families in recreation areas and public parks. A guard or bumper affixed to the machine at the rear would have given protection when the machine was in reverse. The court pointed out that both tortfeasors might have prevented the injury. Both violated a duty of due care owed the injured party and, therefore, each was guilty of the same quality of negligence. The negligent conduct of each was a proximate cause of the injury. Indemnity was denied. For similar decisions see Halligan v. Shulman, 31 Ill.App.2d 168, 175 N.E.2d 590; Delta Engineering Corp. v. Scott, 5 Cir., 322 F.2d 11, cert. den. 377 U.S. 905, 84 S.Ct. 1164, 12 L.Ed.2d 176, and VanderVeer v. Tyrrell, 27 A.D.2d 958, 278 N.Y.S.2d 916.

Viewed most favorably, Bayman's conduct consisted of not less than acts of omission in his duty to plaintiff which contributed to the proximate cause of the injury. His negligence was more than passive or vicarious. Being in pari delicto, he was in no position to shift the entire liability to Outboard Marine. Indemnity was not an issue and the trial court should have dismissed Bayman's claim therefor.

Having reached this conclusion, the record could ordinarily be remanded with instructions to amend the judgment accordingly. However, further assignments require our consideration.

At a pretrial conference, the court directed that no mention...