King v. Timber Structures, Inc. of Cal.

• Decision Date: 16 February 1966
• Citation: 240 Cal.App.2d 178,49 Cal.Rptr. 414
• Court: California Court of Appeals Court of Appeals
• Parties: M. J. KING, Cross-Complainant and Appellant, v. TIMBER STRUCTURES, INC. OF CALIFORNIA, Cross-Defendant and Respondent. Civ. 21930.

Page 414

49 Cal.Rptr. 414

240 Cal.App.2d 178

M. J. KING, Cross-Complainant and Appellant, v. TIMBER STRUCTURES, INC. OF CALIFORNIA, Cross-Defendant and Respondent.

Civ. 21930.

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

Feb. 16, 1966.

Hearing Denied March 13, 1966.

John Wynne Herron, Herron & Winn, San Francisco, for appellant, Cyril Viadro, San Francisco, of counsel.

Sedgwick, Detert, Moran & Arnold, San Francisco, Barfield, Barfield & Dryden, San Francisco, for respondent.

DEVINE, Justice.

On May 7, 1954, the roof trusses of a building which was being constructed for Safeway Stores, Incorporated, in Redwood City collapsed. Six employees of M. J. King, appellant, the general contractor, were injured. They brought action against Safeway as owner; as employees they could not sue King. Safeway settled all but one lawsuit (the one resulted in nonsuit) and then brought action against King and his surety on a contract of indemnity, for the settlement amounts plus various fees, expenses and costs in defending the action, a total of $39,003.50 and expenses caused by delay, $1,498.87. Judgment for Safeway was affirmed. (Safeway Stores, Inc. v. Massachusetts Bonding & Ins. Co., 202 Cal.App.2d 99, 20 Cal.Rptr. 820.) In the lawsuit King cross-complained against Timber Structures, Inc., the subcontractor who had produced and erected the trusses. On motion of Timber Structures severance of the issues raised by the cross-complaint was granted. The findings of fact and the judgment expressly reserve for subsequent trial the issues raised by the cross-complaint.

King then brought his cross-complaint to trial. Judgment was given against him, and it is from this judgment that the present appeal was taken. At the trial on the cross-complaint, which we shall call the 'second trial,' Timber Structures contended that the doctrines of res judicata and collateral estoppel apply against King because in the first trial a finding was made that King had been guilty of what amounted to active negligence. The first trial was heard by Honorable Carl W. Allen, the second by Honorable H. A. van der Zee. Judge Allen had found that King had violated his construction contract with Safeway in these four ways: '(a) by causing roof trusses and framing to be installed which were inferior and not of the best quality; (b) by causing such installation to be made without required bracing; (c) by failing to maintain safeguards against accidents and injuries; and (d) by overloading the building in a manner that endangered its safety.' (202 Cal.App.2d at p. 105, 20 Cal.Rptr. at p. 823.) Judge Allen also noted in his findings that at the time of the accident there was in effect an ordinance of Redwood City which required that: 'Bracing shall be placed during erection whenever necessary to take care of all loads to which the structure may be subjected'; ¹ and an ordinance which required that: 'Roof framing and trussing shall be thoroughly and effectively angle braced.' ² Judge Allen came to the conclusion that the work performed by King was done negligently and carelessly and in violation of the contract, and that the doing of the work in this manner proximately caused the building to collapse.

In his findings and conclusions of law Judge Allen did not decide whether King's negligence was active or passive; indeed, there was no reason for him to do so because the subject of negligence was before him only for determination (a) whether King was negligent at all, as against his denial of negligence; (b) whether Safeway, plaintiff in the first trial, was negligent; and (c) if Safeway were held to be negligent, whether negligence on the part of Safeway was active or passive.

Judge van der Zee's findings expressly refer to the findings just mentioned which had been made by Judge Allen, but in addition Judge van der Zee finds that King was in exclusive control of the construction from May 4, 1954. Judge van der Zee states, among his conclusions of law: (1) That the findings of fact and conclusions of law made by Judge Allen operate as a conclusive determination against King as cross-complainant, as a determination that he was guilty of active and affirmative negligence. Judge van der Zee applies the doctrines of res judicata and collateral estoppel. (2) That the character of negligence of cross-complainant was such as to bar the cross-complaint for indemnification under the written subcontract with cross-defendant Timber Structures. (3) that the provisions of said written subcontract are not broad enough to provide indemnification to cross-complainant as a result of his own affirmative active negligence.

The cross-complaint of King, contractor, against Timber Structures, subcontractor, is based on a written contract which contains provisions of indemnification. Timber Structures agrees to install trusses in place with required struts and cross-bracing, the truss design to meet the approved plans.

The applicable principles of indemnity are:

1. If the contract of indemnification specifically agrees to protect and reimburse the indemnitee even if he becomes actively negligent, the agreement will be enforced. (Goldman v. Ecco-Phoenix Elec. Corp., 62 Cal.2d 40, 48, 41 Cal.Rptr. 73, 396 P.2d 377; Harvey Mach. Co. v. Hatzel & Buehler, Inc., 54 Cal.2d 445, 6 Cal.Rptr. 284, 353 P.2d 924; Rosendahl Corp. v. H. K. Ferguson Co., 211 Cal.App.2d 313, 27 Cal.Rptr. 56; Pacific Tel, & Tel. Co. v. Chick, 202 Cal.App.2d 708, 21 Cal.Rptr. 326; County of Los Angeles v. Cox Bros. Constr. Co., 195 Cal.App.2d 836, 16 Cal.Rptr. 250.) But in this case the court concluded that the contract does not do this. Appellant does not challenge this part of the decision.

2. Absent such a provision as is described in 1, the indemnitee may recover on his contract even if he were negligent, provided his negligence is of the passive kind. (Safeway Stores, Inc. v. Massachusetts Bonding & Ins. Co., 202 Cal.App.2d 99, 20 Cal.Rptr. 820; Cahill Bros., Inc. v. Clementina Co., 208 Cal.App.2d 367, 25 Cal.Rptr. 301; Baldwin Contracting Co. v. Winston Steel Works, Inc., 236 A.C.A. 617, 624, 46 Cal.Rptr. 421.)

3. But, absent such a contract as in 1, if the indemnitee has been negligent and his negligence is active, he may not recover on his contract of indemnity. (Harvey Mach. Co. v. Hatzel & Buehler, Inc., supra; Safeway Stores, Inc. v. Massachusetts Bonding & Ins. Co., supra; Baldwin Contracting Co. v. Winston Stell Works, Inc., supra.)

The difference between the two kinds of negligence is simply that one is passively negligent if he merely fails to act in fulfillment of a duty of care which the law imposes on him; in this case, the duty of a general contractor. One is actively negligent if he participates in some manner in the conduct or omission which caused the injury. (Cahill Bros., Inc. v. Clementina Co., supra, 208 Cal.App.2d p. 382, 25 Cal.Rptr. 301.) The indemnitee may not then recover even though the indemnitor's negligence was the greater. (Horn & Barker, Inc. v. Macco Corp., 228 Cal.App.2d 96, 103-104, 39 Cal.Rptr. 320.) It is the character of the negligence and not its degree which is determinative. (American Can Co. v. City and County of San Francisco, 202 Cal.App.2d 520, 525, 21 Cal.Rptr. 33.) When it is established that plaintiff (or cross-complainant) was responsible for the active negligence of one of its employees, which was at lest one of the proximate causes of the accident, the right of indemnity is foreclosed. (Horn & Barker Inc. v. Macco Corp., supra, 228 Cal.App.2d p. 103, 39 Cal.Rptr. 320.)

In the...