Employers Cas. Co. v. Ideal Cement Co.

• Decision Date: 05 June 1973
• Docket Number: No. 45087,45087
• Citation: 1973 OK 59,511 P.2d 1090
• Parties: EMPLOYERS CASUALTY COMPANY, Appellant, v. IDEAL CEMENT COMPANY, a corporation, and Ideal Basic Industries, Inc., a corporation, Appellees.
• Court: Oklahoma Supreme Court

Page 1090

511 P.2d 1090

EMPLOYERS CASUALTY COMPANY, Appellant, v. IDEAL CEMENT COMPANY, a corporation, and Ideal Basic Industries, Inc., a corporation, Appellees.

No. 45087.

Supreme Court of Oklahoma.

June 5, 1973.

Foliart, Shepherd, Mills & Niemeyer, Oklahoma City, for appellant.

William H. Wilson, Rhodes, Hieronymus, Holloway & Wilson, Oklahoma City, for appellees.

IRWIN, Justice:

Appellant, Employers Casualty Company (plaintiff), concluded a settlement of a personal injury action brought against its insured, Dolese, by Arvel Davis. In this proceeding, plaintiff sought indemnification of the settlement it made with Davis from appellees (defendants) on the grounds that Davis' injuries resulted from defendants' active or primary negligence. The trial court sustained defendants' demurrer to plaintiff's petition and dismissed the action. Plaintiff appealed.

Plaintiff alleged in its petition that it provided liability insurance to Dolese; that prior to the date Davis sustained his injuries, defendants had contracted with Dolese to provide dry cement at Dolese's concrete batch mix plant; that in order to meet its obligations under the contract, defendants placed portable dry cement storage tanks on Dolese's premises and said tanks were owned by defendants and defendants were obligated under their contract with Dolese to maintain the tanks in safe operating condition; and the tanks were placed on Dolese's premises by defendants solely for the convenience of defendants and collateral to defendants' agreement to provide dry cement to Dolese.

Plaintiff further alleged that Davis was employed by Southwest Bulk Handlers as a truck driver and was delivering dry cement from defendants' plant to plaintiff's premises; and that Davis was injured when one of defendants' portable storage tanks located on Dolese's premises exploded as Davis was attempting to relieve the pressure from the tank.

Plaintiff further alleged the commencement of the personal injury action by Davis against Dolese; that it assumed the defense of Dolese in that action and after investigation concluded a settlement with Davis which was a reasonable and necessary settlement under the circumstances; and by the payment of the settlement it became subrogated to Dolese's rights against defendants.

Plaintiff further alleged that 'The accident and resulting injuries to Davis were not a result of any active or primary negligence on the part of Dolese. Instead, the only negligence of Dolese, if any, was in failing to discharge the obligation imposed upon it as an owner or occupier of premises to warn invitees, such as Davis, of the dangers on the premises, or to eliminate such dangers. The accident and Davis' injuries were the result of the active and primary negligence on the part of the defendants herein in placing on Dolese's premises and maintaining the storage tank in a dangerous and defective condition and in failing to have workable equipment to vent the pressure from said tank, and in maintaining said tank with defective and broken down blow-down equipment.'

Defendants attached to their demurrer a copy of the petition filed by Davis against Dolese. In that petition, Davis alleged that pressure is built up in the dry cement storage tanks and the pressure must be released before dry cement can be unloaded in the tanks; that the pressure could not be released by manipulating the blow-down valve because the handle was broken; and that he mounted the tank and was in the act of releasing the hatches on the lid when the tank exploded.

In a Supplemental Opinion on Rehearing in National Trailer Convoy v. Oklahoma Turnpike Authority, Okl., 434 P.2d 238, we said that under our decisions the basic law in Oklahoma is that as between joint tort-feasors there is no right of contribution.

In Cain v. Quannah Light & Ice Co., 131 Okl. 25, 267 P. 641, we held:

'Where the concurring active negligence of two persons causes injury to a third, and one of the wrongdoers is sued and judgment obtained, and, by reason of such judgment, is compelled to discharge the liability thereby incurred, no contribution or indemnity can be had by the person so discharging such liability.'

The Texas Supreme Court in Wheeler v. Glazer, 137 Tex. 341, 153 S.W.2d 449, 140 A.L.R. 1301, said:

'At common law, as a general rule, joint tort-feasors have no right of contribution among themselves. The rule is not based on equity, but rests on...