Herrero v. Atkinson

• Decision Date: 06 May 1964
• Citation: 38 Cal.Rptr. 490,227 Cal.App.2d 69
• Court: California Court of Appeals
• Parties: , 8 A.L.R.3d 629 Clifford Albert HERRERO and Arnold & Herrero Company, a co-partnership, Cross-Complainants and Appellants, v. John ATKINSON, Paul C. Goddard, Everett Viano and Doctors General Hospital, Cross-Defendants and Respondents. Paul C. GODDARD, Cross-Complainant and Appellant, v. John ATKINSON and Doctors General Hospital, Cross-Defendants and Respondents. Civ. 21146, 21147.

Page 490

38 Cal.Rptr. 490

227 Cal.App.2d 69, 8 A.L.R.3d 629

Clifford Albert HERRERO and Arnold & Herrero Company, a co-partnership, Cross-Complainants and Appellants, v.John ATKINSON, Paul C. Goddard, Everett Viano and Doctors General Hospital, Cross-Defendants and Respondents.

Paul C. GODDARD, Cross-Complainant and Appellant, v.John ATKINSON and Doctors General Hospital, Cross-Defendants and Respondents.

Civ. 21146, 21147.

District Court of Appeal, First District, Division 3, California.

May 6, 1964.

Hearing Denied July 1, 1964.

Kilday, Nemer, Farbstein & Green, Donald F. Farbstein, San Mateo, Berta & Connell, San Francisco, for appellants Herrero and Arnold & Herrero Co.

Lamb, Hoge & Glynn, San Francisco, for respondentJohn Atkinson.

Bronson, Bronson & McKinnon, San Francisco, for respondentPaul C. Goddard.

Campbell, Custer, Warburton & Britton, San Jose, for respondent Doctors General Hospital.

Rankin, Oneal, Luckhardt, Center, Longinotti & Ingram, San Jose, for respondentEverett Viano.

SALSMAN, Justice.

We are here presented with two separate appeals, each from a judgment of dismissal after the trial court sustained demurrers to cross-complaints without leave to amend.The first appeal is by Clifford Albert Herrero and Arnold & Herrero Company, hereafter referred to simply as Herrero.The second appeal is by Dr. Paul C. Goddard.The situation of the parties and their relation to each other will appear from the statement of the case hereafter recited.

Herrero, while driving a motor vehicle, was involved in an accident with another vehicle.Alice Lorenzo was injured in the accident.¹About 18 months after her injury, Alice Lorenzo employed Drs. Atkinson, Goddard and Viano to perform an operation made necessary because of her injury by Herrero, and entered Doctors General Hospital where the operation was to be performed.In the course of the operation Alice Lorenzo died.

Tony Lorenzo, as administrator of the estate of Alice Lorenzo, filed an action for damages for wrongful death.Herrero, Doctors General Hospital, and Drs. John Atkinson, Paul C. Goddard and Everett Viano were named defendants.The complaint alleged that the defendants, other than Herrero, negligently administered a blood transfusion during the course of the operation and that as a result of the negligence of all defendantsAlice Lorenzo died.

Herrero answered the complaint and filed a cross-complaint for declaratory relief and indemnity, naming the hospital and doctors as cross-defendants.Herrero's cross-complaint alleged that his liability for wrongful death would attach only by reason of the negligence of the doctors and the hospital and hence these cross-defendants were bound to indemnify him for any such liability.Each of the doctors and the hospital filed general demurrers to the cross-complaint.The demurrers were sustained without leave to amend, and Herrero appeals from the judgment of dismissal.

The defendantDr. Paul C. Goddard answered the complaint of the administrator and also filed a cross-complaint seeking declaratory relief and indemnity against the hospital and Drs. Atkinson and Viano.The theory of the Goddard cross-complaint was that if the court were to determine that the other defendants were his agents in performing the operation, as alleged in the administrator's complaint, then cross-complainant Goddard would be entitled to indemnity for all damages caused by the negligent acts of his agents.The Goddard cross-complaint also alleged a second cause of action against the cross-defendants on the ground that Goddard's liability, if any, would arise only from the primary and active negligence of the cross-defendants and that his negligence, if any, was merely passive or secondary.The Doctors General Hospital and Dr. Atkinson successfully demurred to the Goddard cross-complaint, and Goddard appeals from the judgment of dismissal.²

If the cross-complaints state facts sufficient to show a right to indemnity on the part of Herrero and Dr. Goddard, the judgments must be reversed.We first consider the appeal of Herrero.

It is important to note that both cross-complaints seek indemnity and not contribution.There is a distinction between the two rights.Indemnity seeks to transfer the entire loss imposed upon one tortfeasor to another who in justice and equity should bear it.Contribution distributes the loss equally among all tortfeasors, each bearing his prorata share (Code Civ.Proc. §§ 875,876;Cahill Bros. Inc. v. Clementina Co., 208 Cal.App.2d 367, 376, 25 Cal.Rptr. 301;Prosser, Torts, p. 249.)Where one tortfeasor is entitled to indemnity from the other, the right of contribution does not exist.(Code Civ.Proc. § 875(f)).

A right to implied indemnity among tortfeasors may arise out of some contractual relationship between the parties, or from equitable considerations.(Cahill Bros. Inc v. Clementina Co., supraat 375-376 of 208 Cal.App.2d, 25 Cal.Rptr. 301, and cases cited;Prosser, Torts, pp. 249-251.)Here, so far as Herrero is concerned, if the right to indemnity exists at all, it must be implied in law for it is not contended that any contractual relationship existed between Herrero, the hospital and the individual doctors who are the cross-defendants.

As a general rule an implied right of indemnity does not exist among tort-feasors where the parties are in pari delicto, that is, when the fault of each is of equal grade and similar in character.(See42 C.J.S.Indemnity§ 27, pp. 605-606.)The reason stated for this rule is that the courts will not aid one tortfeasor against another because no one should be permitted to found a cause of action on his own wrong.Nevertheless, the right to implied indemnity has been recognized and allowed in many cases and in varying fact situations where considerations of equity require the right to be recognized.(Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 IowaL.Rev. 517.)Numerous theories have been advanced to support the allowance of indemnity in particular cases, among them distinctions between primary and secondary liability, constructive liability, derivative liability, a difference in the respective duties owed by the tortfeasors, active and passive negligence, and even the doctrine of the last clear chance.(See28 Mo.L.Rev. 307, 308-9;Prosser, Torts, supra.)No one explanation appears to cover all cases.

The duty to indemnify may arise, and indemnity may be allowed in those fact situations where in equity and good conscience the burden of the judgment should be shifted from the shoulders of the person seeking indemnity to the one from whom indemnity is sought.The right depends upon the principle that everyone is responsible for the consequences of his own wrong, and if others have been compelled to pay damages which ought to have been paid by the wrongdoer, they may recover from him.Thus the determination of whether or not indemnity should be allowed must of necessity depend upon the facts of each case.(Leflar, Contribution and Indemnity Between Tortfeasors, 81 U. of Penn.L.Rev. 130, 153-156;Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 IowaL.Rev. 517.)

Here, if Herrero is liable, he is liable for the damages caused by his own negligent conduct, and may be made further liable for the later alleged negligent conduct of the cross-defendant doctors and hospital.Herrero's liability for the negligence of the doctors and hospital would arise out of a positive rule of decisional law of this state, as stated in Ash v. Mortensen, 24 Cal.2d 654, 657, 150 P.2d 876, 877, where the court said: 'It is settled that where one who has suffered personal injuries by reason of the tortious act of another exercises due care in securing the services of a doctor and his injuries are aggravated by the negligence of such doctor, the law regards the act of the original wrongdoer as a proximate cause of the damages flowing from the subsequent negligent medical treatment and holds him liable therefor.'(See alsoBlackwell v. American Film Co., 189 Cal. 689, 209 P. 999.)Of course, the individual doctors and hospital, if guilty of negligence and malpractice, are separately liable for their own wrongful acts.(Ash v. Mortensen, supra.)Although the original negligence of Herrero may be regarded in law as a proximate cause of the damages flowing from the subsequent malpractice of the cross-defendants, and the plaintiff may recover a joint and several judgment against all who are found liable, there is no reason why the ultimate burden of damages should not be distributed among the various defendants, and each be made to bear that portion of the judgment which in equity and good conscience should be borne by him.Here, Herrero has had no part in the selection of any of the cross-defendant doctors or hospital.Nothing appears to indicate that he was even aware of the decedent's decision to submit to surgery.He has had no control or direction over the conduct of the cross-defendants and not the slightest opportunity to protect himself against their negligence, yet he is made liable in law for any damages caused by them.Under such circumstances it is equitable and just that indemnity be allowed Herrero, and that the cross-defendant doctors and hospital bear that portion of the damages caused by their own negligent conduct.

There is some authority for this rule, and it has been applied in cases such as this.Thus, in Fisher v. Milwaukee Electric Ry. & Light Co., 173 Wis. 57, 180 N.W. 269, plaintiff sued defendant for negligence.Defendant filed a cross-complaint against the treating doctor for alleged malpractice aggravating plaintiff's injuries.The court determined that plaintiff would be entitled to a judgment against all defendants, and that the original negligent defendant would be entitled to judgment against the negligent doctor for the aggravation of damages caused by the malpractice.A later...