Guy F. Atkinson Co. v. Consani

• Citation: 35 Cal.Rptr. 750,223 Cal.App.2d 342
• Court: California Court of Appeals Court of Appeals
• Decision Date: 16 December 1963
• Parties: GUY F. ATKINSON COMPANY, a corporation, Defendant and Appellant, v. Robert Frank CONSANI, Defendant and Respondent. Civ. 21035.

Page 750

35 Cal.Rptr. 750

223 Cal.App.2d 342

GUY F. ATKINSON COMPANY, a corporation, Defendant and Appellant, v. Robert Frank CONSANI, Defendant and Respondent.

Civ. 21035.

District Court of Appeal, First District, Division 2, California.

Dec. 16, 1963.

Hearing Denied Feb. 5, 1964.

Leslie L. Roos, San Francisco, for appellant.

Spridgen, Moskowitz, Barrett & Achor, Santa Rosa, for respondent.

TAYLOR, Justice.

This appeal following a jury trial for personal injuries in which plaintiff prevailed is brought by one defendant to reverse judgment for a codefendant on the contention that an erroneous instruction may have cost the appellant its right to contribution.

The facts material to the case are as follows: During the 1960 reconstruction of Highway 101 near Santa Rosa, Philip Auchard, a state highway engineer, was injured by respondent Consani, an independent trucking contractor working under the supervision and control of appellant Atkinson. In 1962, judgment was entered on a jury verdict in favor of Auchard and against appellant Atkinson, and in favor of respondent Consani and against Auchard. The judgment was fully satisfied by the appellant Atkinson and the appeal as to Auchard voluntarily dismissed (Calif.Rules of Court, Rule 19(b)).

The appellant contends that it is a party aggrieved because the verdict in favor of respondent Consani based on a concededly erroneous instruction ¹ deprived it of its prospective right to contribution under section 875 of the Code of Civil Procedure. Respondent contends that the enactment of this statute did not change the law concerning appeals; that since the appellant has not met the requirement of the statute or any of the exceptions to the common law rule against contribution by joint tortfeasors, this appeal must be dismissed.

Appellant concedes that in this state prior to 1957, a party was not aggrieved by an erroneous judgment in favor of a codefendant (Richman v. Green, 143 Cal.App.2d 470, 472, 299 P.2d 890; Hession v. City and County of San Francisco, 122 Cal.App.2d 592, 596, 602, 265 P.2d 542; Click v. Southern Pacific Co., 113 Cal.App. 528, 298 P. 839), but argues that the rule was changed by the enactment of Code of Civil Procedure, sections 875-880. We do not agree.

Prior to the statute, the common law rule, although subject to certain exceptions ² was that one joint tortfeasor could not seek contribution or indemnity from another. Pursuant to section 875 a limited right to contribution became available where a money judgment has been rendered jointly against two or more defendants in a tort action (Augustus v. Bean, 56 Cal.2d 270, 272, 14 Cal.Rptr. 641, 363 P.2d 873). Where this section is not applicable, however, the common law still prevails (American Can Co. v. City and County of San Francisco, 202 Cal.App.2d 520, 523, 21 Cal.Rptr. 33).

The appellant, citing language in Thornton v. Luce, 209 Cal.App.2d 542 at page 552, 26 Cal.Rptr. 393 at page 399, contends that since the judgment in this case has been satisfied and the plaintiff need not suffer the inconvenience and expense of another trial, there is no logical reason why the two defendants should not continue to litigate. While in Thornton, the appeals were from judgments favoring both the plaintiffs and codefendants and the court did comment on the burden a retrial would impose on an innocent plaintiff, the ruling of the case is not based on this consideration alone and is directly opposed to the appellant's position here. The court cited the common law rule against the right to contribution, the limited application of the contribution statute of 1957, and emphasized that since the plaintiff alone determines who is to be sued, the appellant would have been powerless to bring other defendants into the action by motions prior to trial. The court in denying precisely the same contention made by the appellant in the instant case, stated at page 551 of 209 Cal.App.2d, at page 398 of 26 Cal.Rptr.: 'What, then, is the right created by section 875 and when does it come into existence? The answer appears to be given in the initial sentence: '(a) Where a money judgment has been rendered jointly against two or more defendants in a tort action there shall be a right of contribution among them as hereinafter provided.' Further, subsection (c) thereof provides, 'Such right of contribution may be enforced only after one tortfeasor has, by payment, discharged the joint judgment or has paid more than his pro rata share thereof.' (Emphasis added.) When called upon to determine when the cause of action for contribution arises, i. e., whether at the time of the accident involved or at some later date, our Supreme Court in Augustus v. Bean, supra, 56 Cal.2d 270, page 272, 14 Cal.Rptr. 641, page 642, 363 P.2d 873, page 874, stated: 'The statutory system for contribution does not concern the relationship of tortfeasors to the one injured but deals with the relationship of tortfeasors to each other when, after entry of judgment, one of them discharges the common liability.' (Emphasis added.) (See, also, Hudson v. Hutchason, 171 Cal.App.2d Supp. 869, 871, 340 P.2d 756.)'

In Thornton, the court also asserted that any extension of the right to enforce contribution between joint tortfeasors is solely a matter of legislative concern. The court said: 'Whatever merit, if any, there might be in a suggestion that the Legislature should consider the desirability of devising some method by which wrongdoers might litigate their respective rights, it is clear that it has not as yet done so.' (P. 552 of 209 Cal.App.2d, p. 399 of 26 Cal.Rptr.)

Appellant relies on contrary authority in other jurisdictions, particularly Hutcherson v. Slate (1928) 105 W.Va. 184, 142 S.E. 444. There is a split of authority (see 60 A.L.R.2d 557) but California follows the construction applied by the New York courts to section 211-a of the New York Civil Practice Act. The New York statute, enacted in 1928, is substantially identical to section 875 of our Code of Civil Procedure. All of the decisions interpreting the New York statute hold that a party has no right of appeal from a judgment in favor of a codefendant (Price v. Ryan (1930) 255 N.Y. 16, 173 N.E....