General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks.

• Decision Date: 04 June 1973
• Citation: 32 Cal.App.3d 918,108 Cal.Rptr. 543
• Court: California Court of Appeals Court of Appeals
• Parties: GENERAL ELECTRIC COMPANY, a corporation, et al., Cross-Complainants and Appellants, v. STATE of California ex rel. DEPARTMENT OF PUBLIC WORKS et al., Cross-Defendants and Respondents. Civ. 30690--30692.

Page 543

108 Cal.Rptr. 543

32 Cal.App.3d 918

GENERAL ELECTRIC COMPANY, a corporation, et al., Cross-Complainants and Appellants, v. STATE of California ex rel. DEPARTMENT OF PUBLIC WORKS et al., Cross-Defendants and Respondents.

Civ. 30690--30692.

Court of Appeal, First District, Division 1, California.

June 4, 1973.

Hearing Denied Sept. 6, 1973.

Sedgwick, Detert, Moran & Arnold, San Francisco, for appellants.

Harry S. Fenton, Chief Counsel, Sacramento, John P. Horgan, Robert J. DeFea, San Francisco, Kenneth G. Nellis, Sacramento, David L. Schreck, Donald J. Sullivan, San Francisco, for respondent State of California.

Fields, McBride, Gordon & Rees, San Francisco, for respondent County of Alameda.

ELKINGTON, Associate Justice.

According to the complaints of the three separate actions from which the instant appeals have arisen, an automobile driven by James Bailey in which his wife Sharon was a passenger was rear-ended by another vehicle. The Bailey car was thereby propelled across a center dividing 'island' into oncoming traffic, causing a head-on collision with a vehicle driven by Wallace Moore. The vehicle which had first struck the Bailey automobile was being operated by John O'Connell in the course of his employment by General Electric Company; it was owned by General Electric Company and Lease Plan, Inc. James Bailey, his wife Sharon, and Wallace Moore commenced separate actions against these parties for injuries and damages resulting from the accident.

Thereafter John O'Connell, General Electric Company, and Lease Plan, Inc., filed cross-complaints in each action against the State of California and the County of Alameda. In each it was alleged that the state and county cross-defendants had knowingly maintained the highway at the point of the accident 'in a dangerous, defective and hazardous condition for people driving on that road in that there was no median divider, tension cable, dividing apparatus, or separation of any kind between northbound and southbound vehicles to prevent them from coming into contact and colliding should they in any way deviate or be compelled to deviate, from their intended course,' thus knowingly creating 'a reasonably foreseeable risk of injury to parties driving on said highway,' all of which proximately contributed to the injuries of the plaintiff.

Prayed for in each cross-complaint was a judicial declaration 'that cross-complainants, and each of them, are entitled to an implied right of indemnification, or right of indemnification by operation of law, or equitable right of indemnification against cross-defendants, and each of them, for any judgment rendered against cross-complainants, or any sums paid as a result of the complaint on file in this action.'

The superior court sustained general demurrers without leave to amend to each of the cross-complaints. Cross-complainants have appealed from the resulting judgments of dismissal of their cross-actions.

We assume, arguendo, as apparently the parties did in the superior court, that the allegations of the cross-complaints would have stated causes of action against the state and county had they been incorporated in the plaintiffs' complaint. We, ourselves, do not pass upon this question. Instead we proceed to consider only the theories which appear to have been raised in the court below.

In support of their contention that each of their cross-complaints stated a cause of action for relief, cross-complainants urge three theories, which they entitle 'Indemnity,' 'Contribution,' and 'Equitable Apportionment.' Throughout their supportive arguments they insist that they occupy a superior equitable position to that of the state and county cross-defendants. From our view of the circumstances as pleaded in the cross-complaints we are unable to agree.

Indemnity

The argument here appears to be, not that cross-complainants should be indemnified against all liability arising out of the accident, but that 'the public entities should be made to absorb that part of plaintiffs' damages' arising from the head-on collision. The theory is that of 'equitable implied non-contractual indemnity.'

This theory was extensively discussed in Atchison, T. & S.F. Ry. v. Lan Franco, 267 Cal.App.2d 881, 886--887, 73 Cal.Rptr. 660, 664. There the court stated:

'The cases are not always helpful in determining whether equitable indemnity lies. The tests utilized in applying the doctrine are vague. Some authorities characterize the negligence of the indemnitor as 'active,' 'primary,' or 'positive,' and the negligence of the indemnitee as 'passive,' 'secondary,' or 'negative.' . . . Other authorities indicate that the application of the doctrine depends on whether the claimant's liability is 'primary,' 'secondary,' 'constructive,' or derivative. ' . . . These formalizations have been criticized as being artificial and as lacking the objective criteria desirable for predictability in the law. . . .

'Notwithstanding the uncertainty generated by the foregoing terminology, two critical prerequisites are generally necessary for the invocation of non-contractual implied indemnity in California: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured party; and (2) it must appear that the claimant did not actively nor affirmatively participate in the wrong. . . .'

The foregoing rule that one seeking equitable indemnity from his joint tortfeasor must not have actively or affirmatively participated in the wrong, has been widely followed in California. (See Standard Oil Co. v. Oil, Chemical etc., Internat. Union, 23 Cal.App.3d 585, 590--591, 100 Cal.Rptr. 354; People ex rel. Dept. Pub. Wks. v. Daly City Scavenger Co., 19 Cal.App.3d 277, 281--282, 96 Cal.Rptr. 669; Sammer v. Ball, 12 Cal.App.3d 607, 610, 91 Cal.Rptr. 121; Pearson Ford Co. v. Ford Motor Co., 273 Cal.App.2d 269, 272--273, 78 Cal.Rptr. 279; Ferrel v. Vegetable Oil Products Co., 247 Cal.App.2d 117, 120, 55 Cal.Rptr. 589.)

Applying this rule to the instant cases, it must be said that O'Connell's rear ending of the Bailey car constituted active and affirmative participation in the wrong leading to each of the plaintiffs' injuries.

Other cases decline to follow too closely the 'active and affirmative participation' test of Atchison T. & S.F. Ry. v. Lan Franco, supra, 267 Cal.App.2d 881, 73 Cal.Rptr. 660. They emphasizes a 'primary and secondary liability' test under which a party secondarily liable may have indemnity from a joint tortfeasor whose liability is primary. Discussing this rule, the court in Ford Motor Co. v. Robert J. Poeschl, Inc., 21 Cal.App.3d 694, 696--697, 98 Cal.Rptr. 702, 703, said:

'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-active 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, 24 A.L.R.2d 319: 'The right of indemnity rests upon a difference between the primary and 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. '' (To the same effect see Muth v. Urricelqui, 251 Cal.App.2d 901, 908--909, 60 Cal.Rptr. 166; Aerojet General Corp. v. D. Zelinsky & Sons, 249 Cal.App.2d 604, 611, 57 Cal.Rptr. 701; Ralke Co. v. Esquire Bldg. Maintenance Co., 246 Cal,.app.2d 141, 144, 54 Cal.Rptr. 556; Horn & Barker Inc. v. Macco Corp., 228 Cal.App.2d 96, 112, 39 Cal.Rptr. 320; Pierce v. Turner, 205 Cal.App.2d 264, 267--268, 23 Cal.Rptr. 115; American Can Co. v. City & County of San Francisco, 202 Cal.App.2d 520, 525, 21 Cal.Rptr. 33; Alisal Sanitary Dist. v. Kennedy, 180 Cal.App.2d 69, 75, 4 Cal.Rptr. 379.)

It will be noted that even under this latter rule, '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, . . .' (Emphasis added; Ford Motor Co. v. Robert J. Poeschl, Inc., supra, 21 Cal.App.3d 694, 697, 98 Cal.Rptr. 702, 704.) In the cases before us cross-complainants' liability to the several plaintiffs is patently neither constructive, nor imputed by or through any act of the state and county cross-defendants.

Cross-complainants place much reliance on Herrero v. Atkinson, 227 Cal.App.2d 69, 38 Cal.Rptr. 490. In that case the pleadings indicated: that one Alice Lorenzo was injured in an automobile accident as a proximate result of Herrero's negligence; that 18 months later an operation became necessary because of those injuries; and that in the operation doctors negligently administered a blood transfusion proximately causing the lady's death. Herrero thus became liable to her heirs for the death. (See Ash v. Mortensen, 24 Cal.2d 654, 657, 150 P.2d 876.) In an action brought by Lorenzo's administrator, Herrero...