Ford Motor Co. v. Robert J. Poeschl, Inc.

Decision Date30 November 1971
Citation98 Cal.Rptr. 702,21 Cal.App.3d 694
CourtCalifornia Court of Appeals Court of Appeals
PartiesFORD MOTOR COMPANY, Plaintiff and Appellant, v. ROBERT J. POESCHL, INC., a California corporation, and J. W. McAlister Co., a California corporation, Defendants and Respondents. Civ. 12471.

McGregor, Bullen & McKone by George Bullen, Sacramento, for plaintiff and appellant.

Hardy, Erich & Brown by Russell G. Porter, Sacramento, for defendants and respondents.

FRIEDMAN, Acting Presiding Justice.

Through this indemnification suit Ford Motor Company seeks to shift the cost of a personal injury settlement to the dealer and the leasing agency who placed an allegedly unsafe automobile in the hands of the customer.

Gist of Ford's complaint is that it sent to its dealers a notice requesting the recall of certain 1964 Thunderbird automobiles (designated by number) in order to have the rear brake light serviced; that, despite the recall notice, one of the listed Thunderbirds leased to a customer by defendants was involved in an accident allegedly caused by the very brake light defect described in the recall notice; that Ford paid $72,000 to settle litigation instituted by the injured parties against Ford, the dealer and the leasing agency; that the latter two parties refused to contribute to the settlement.

The trial court held that Ford's second amended complaint failed to state a claim for relief and sustained a general demurrer without leave to amend. Ford has appealed from the ensuing judgment.

The parties entered into no contract to indemnify. Ford's claim is thus hinged to the principle of implied indemnity, which permits one of two tortfeasors to shift the entire loss to the other when, without active fault on the claimant's part, he has been compelled by reason of some legal obligation to pay damages occasioned by the immediate fault of the other. As a rough rule of thumb, the decisions allowing indemnity speak of the 'passive' fault of the claimant as compared with the 'active' fault of the indemnitor. Standing alone, the passive-action fault criterion is too vague to serve as a decisional guide. The standard most frequently applied by the California appellate courts is one drawn from an opinion of the Pennsylvania Supreme Court in Builders Supply Co. v. McCabe, 366 Pa. 322, 325--326, 77 A.2d 368, 370, 371: 'The right of Indemnity rests upon a difference between the primary and the secondary liability of two persons each of whom is made responsible by the law to an injured party. * * * The difference between primary and secondary liability is not based on a difference in Degrees of negligence or on any doctrine of Comparative negligence--a doctrine which, indeed, is not recognized by the common law; * * * It depends on a difference in the Character or Kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. * * * But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible.' 1

Recognizing that any verbal formulation is vulnerable to subjective manipulation, a commentator has shrewdly observed that deterrence is the policy goal underlying most of the implied indemnity decisions. (Comment, Allocation of Loss Among Joint Tortfeasors, 41 So.Cal.L.Rev. 728, 744.) A similar measuring device is suggested by the last clear chance concept, drawn by analogy from another area of the law involving dual sources of fault. (See 2 Witkin, Summary of California Law, pp. 1542--1543.) The analogy has been noted by the American Law Institute's reporters for the Restatement of Restitution. Section 97 of the Restatement calls for indemnification of one tortfeasor by another, when the latter knew of the peril and could have averted it when the first actor was unable to do so. 2

Wrongs other than negligence may create dual liability to the third party and produce the claim of indemnity. In products liability cases such as this, a manufacturer's or retailer's strict liability in tort may form the springboard for the indemnity claim. (See Dart Transportation Service v. Mack Trucks, Inc., 9 Cal.App.3d 837, 848, 88 Cal.Rptr. 670.) An automobile manufacturer who produces a defective car and places it on the market is strictly liable in tort for resultant damages without proof of negligence; moreover, a manufacturer cannot escape liability by delegating to its dealers responsibility for inspections and corrections necessary to have its cars delivered to the ultimate customer free of dangerous defects. (Vandermark v. Ford Motor Co., 61 Cal.2d 256, 261, 37 Cal.Rptr. 896, 391 P.2d 168.)

Before applying these standards to the case at hand, we take note of decisions holding that the issue whether the claimant's conduct precludes indemnity is a fact question for the jury and becomes one of law only when the result is clear and undisputable. (Pearson Ford Co. v. Ford Motor Co., 273 Cal.App.2d 269, 275, 78 Cal.Rptr. 279; Ralke Co. v. Esquire Bldg. Maintenance Co., supra, 246 Cal.App.2d at pp. 144--145, 54 Cal.Rptr. 556.) Such pronouncements are made in the context of post-trial appeals which equip the reviewing court with an evidentiary record and a verdict or finding. Here the indemnity claim comes up on the plaintiff's pleading. The issue's character as one of fact is dubious in any event. (See Aerojet Gen. Corp. v. D. Zelinsky & Sons, 249 Cal.App.2d at p. 610, 57 Cal.Rptr. 701; Weiner, The Civil Jury Trial and the Law-Fact Distinction, 54 Cal.L.Rev. 1867 (1966).) The doubt is not troublesome here. Plaintiff has twice amended its complaint and is thus accountable for a crystallized statement of the facts. The fact situation being fixed, the task is to characterize it according to legal standards, essentially a law determination rather than a fact-finding problem.

Whether the vehicle was in the dealer's hands or whether it had reached the customer at the time of the...

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21 cases
  • American Motorcycle Assn. v. Superior Court
    • United States
    • California Supreme Court
    • February 9, 1978
    ...rather than the imposition of the entire loss upon one or the other tortfeasor. The case of Ford Motor Co. v. Poeschl, Inc. (1971) 21 Cal.App.3d 694, 98 Cal.Rptr. 702 (hereafter "Poeschl ") illuminates the problem. In Poeschl, the Ford Motor Company had sent a recall notice to its dealers r......
  • Defries v. Yamaha Motor Corp.
    • United States
    • California Court of Appeals Court of Appeals
    • October 26, 2022
    ...about the defect was communicated to downstream entities by means of a recall notice ( Ford Motor Co. v. Robert J. Poeschl, Inc. (1971) 21 Cal.App.3d 694, 698-699, 98 Cal.Rptr. 702 ). In all of those ways, the manufacturer's duty to produce a nondefective product is nondelegable. Similar po......
  • Bay Development, Ltd. v. Superior Court
    • United States
    • California Supreme Court
    • May 31, 1990
    ...implied contractual indemnity as it is to a claim for noncontractual equitable indemnity. (See also Ford Motor Co. v. Robert J. Poeschl, Inc. (1971) 21 Cal.App.3d 694, 699, 98 Cal.Rptr. 702, discussed in American Motorcycle, supra, 20 Cal.3d at pp. 595-597, 146 Cal.Rptr. 182, 578 P.2d 899; ......
  • Western Steamship Lines, Inc. v. San Pedro Peninsula Hospital
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    ...as the theoretical underpinnings of equitable indemnification and guided its application. (See Ford Motor Co. v. Robert J. Poeschl, Inc. (1971) 21 Cal.App.3d 694, 696-697, 98 Cal.Rptr. 702.) At the same time, courts often frankly admitted that the standard was vague and imprecise: "No one e......
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1 books & journal articles
  • Colorado's Contribution Among Tortfeasors Act
    • United States
    • Colorado Bar Association Colorado Lawyer No. 6-9, September 1977
    • Invalid date
    ...even when the tortfeasor's liability to the plaintiff is based on strict liability. See Ford Motor Co. v. Robert J. Poeschl, Inc., 98 Cal. Rptr. 702 (1972); Duncan v. Beres, 166 N.W.2d 678 (Mich. 1968); Leflar, "Contribution and Indemnity Between Tortfeasors," 81 Univ. Penn. L. Rev. 130 at ......

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