Lewis Ave. Parent Teachers' Ass'n v. Hussey

• Decision Date: 20 April 1967
• Citation: 58 Cal.Rptr. 499,250 Cal.App.2d 232
• Court: California Court of Appeals Court of Appeals
• Parties: LEWIS AVENUE PARENT TEACHERS' ASSOCIATION, Cross-Complainant and Appellant, v. George HUSSEY, Cross-Defendant and Respondent. Civ. 24203.

Page 499

58 Cal.Rptr. 499

250 Cal.App.2d 232

LEWIS AVENUE PARENT TEACHERS' ASSOCIATION, Cross-Complainant and Appellant, v. George HUSSEY, Cross-Defendant and Respondent.

Civ. 24203.

Court of Appeal, First District, Division 4, California.

April 20, 1967.

Kinkle, Rodiger, Graf & Dewberry, by William B. Rodiger and Joe A. Austere, Los Angeles, for appellant.

Robert A. Bolton, San Jose, Richard H. Abraham, Berkeley, for respondent.

CHRISTIAN, Associate Justice.

Defendant and cross-complainant, Lewis Avenue Parent Teachers' Association (hereinafter called 'the PTA') appeals from an order dismissing its sixth amended cross-complaint for failure to amend further after a general demurrer was sustained. The cross-complaint sought a declaration that if the PTA is held liable for the personal injuries of plaintiff Barbara Obenshain that liability should be indemnified by the PTA's co-defendants. We hold that the dismissal was error.

Plaintiff's complaint alleges: (1) Atascadero Business Mens' Association, Atascadero School District, the PTA (cross-complainant and appellant here) and other defendants invited the general public to a fair conducted by the defendants; (2) after paying an admission fee to enter the 'Spook House,' one of the concessions at the fair, plaintiff suffered injuries in descending a chute or slide which was used in the entertainment; (3) defendants knew the chute was negligently constructed, and defendants and their agents used excessive force in propelling plaintiff into the device. The PTA's answer admits only that it was a 'sponsor' of the fair and that plaintiff was injured while using the slide.

The PTA cross-complained for indemnity against the other defendants. Demurrers to the cross-complaint and to six successive amended cross-complaints were sustained for failure to state a cause of action. The PTA declined to amend further and, upon motion of cross-defendant Hussey, a judgment of dismissal was entered.

After reciting the allegations in the Obenshain complaint, the PTA in the sixth amended cross-complaint denied (1) that it owned, operated, maintained or constructed the 'Spook House' or the chute therein, (2) that it either propelled plaintiff down the chute or failed to use due care, (3) that any person who propelled plaintiff down the chute was its agent. The cross-complaint then alleges that the chute was owned, operated, maintained and constructed by the cross-defendants who personally propelled patrons into the device and controlled its use. The PTA alleges the existence of an actual controversy in that it maintains, and the cross-defendants deny, that if plaintiff recovers judgment against the PTA it will have been upon the theory that despite the PTA's contrary contention the cross-defendants were its agents for whose tortious acts the PTA is responsible in damages.

No question is raised as to the PTA's right to cross-complain for indemnity against a cross-defendant who is not a party to the main action. (Code Civ.Proc. § 442; Roylance v. Doelger (1962) 57 Cal.2d 255, 258--259, 19 Cal.Rptr. 7, 368 P.2d 535.) Such a cross-complaint properly takes the form, adopted by the PTA in the present case, of an action for declaratory relief. (Sattinger v. Newbauer (1954) 123 Cal.App.2d 365, 368, 266 P.2d 586; Code Civ.Proc. § 1060.)

Respondent asserts that the cross-complaint does not state a cause of action in that (1) it fails to allege an express or implied contract of indemnity, (2) under the allegations of the original complaint it is possible that the PTA will be held liable for its own fault independent of any imputed negligence on the part of its alleged agents, (3) both in its answer and in its cross- complaint the PTA has denied that the cross-defendants were its agents. These arguments are without avail.

The right to indemnity may rest upon any of several alternative grounds including an express or implied contract to indemnify, the difference between primary and secondary liability of two persons (as in our case, where a principal's liability flows from the acts of his agent), the existence of a special relationship between the parties, or other facts indicating that in equity and good conscience the burden of the judgment should be shifted. (City & County of San Francisco v. Ho Sing (1958) 51 Cal.2d 127, 330 P.2d 802; Cahill Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367, 25 Cal.Rptr. 301; American Can Co. v. City & County of San Francisco (1962) 202 Cal.App.2d 520, 21 Cal.Rptr. 33; Alisal Sanitary Dist. v. Kennedy (1960) 180 Cal.App.2d 69, 4 Cal.Rptr. 379.) Thus, failure to allege the existence of an agreement of indemnity or a special relationship is not fatal to the cross-complaint if another basis for relief is shown.

It is well established that when a judgment has been rendered against a principal for damages caused by the unauthorized tortious act of his agent, the principal is entitled to bring an action against the agent to recoup his losses. (Walsh v. Hooker & Fay (1963) 212 Cal.App.2d 450, 462, 28 Cal.Rptr. 16.) '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.' (Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490, 493, 8 A.L.R.3d 629.)

Respondent correctly points out that if all the allegations of the original complaint are proven the PTA will be held liable as a result of its own fault independent of any imputed negligence on the part of its alleged agents. In...