Pacific Tel. & Tel. Co. v. Pacific Gas & Elec. Co.

• Decision Date: 18 May 1959
• Court: California Court of Appeals Court of Appeals
• Parties: PACIFIC TELEPHONE AND TELEGRAPH COMPANY, a corporation, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Coast Counties Gas and Electric Company, a corporation, Defendants and Appellants. Civ. 18288.

Page 984

338 P.2d 984

170 Cal.App.2d 387

PACIFIC TELEPHONE AND TELEGRAPH COMPANY, a corporation, Plaintiff and Respondent, v. PACIFIC GAS AND ELECTRIC COMPANY, a corporation, Coast Counties Gas and Electric Company, a corporation, Defendants and Appellants.

Civ. 18288.

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

May 18, 1959.

Boyd, Taylor, Nave & Flageollet, San Francisco, for appellants.

Bronson, Bronson & McKinnon, San Francisco, for respondent.

KAUFMAN, Presiding Justice.

This is an appeal from a judgment in favor of the plaintiff, Pacific Telephone & Telegraph Co., in an action to recover sums paid to settle a wrongful death action against Pacific Telephone & Telegraph Company, brought by the heirs of one Leon Pettus. Pettus, an employee of defendant Coast Counties Gas & Electric Company, a subsidiary of defendant Pacific Gas & Electric Company, ^* was killed while working on a pole owned jointly by P. G. & E. and Pacific Telephone Company. The sole issue on appeal is whether P. G. & E. is obliged to indemnify Pacific Telephone under the terms of a written agreement.

The facts are not in dispute. On December 11, 1914, Pacific Telephone and Coast Counties entered into a written 'joint-pole' agreement, which was amended in 1936, and remained in full force and effect thereafter. As far as relevant, this agreement provided:

'First-D. Each of the parties hereto shall place and maintain, at its own risk and expense, its wires, cables, cross-arms, tixtures and appurtenances thereto in a safe condition, in thorough and complete repair and in conformity with the specifications contained in the Seventh Section of this agreement and they duly authorized laws, regulations and ordinances that may apply, and shall promptly replace or repair any defective part thereof when notified so to do by the other party in writing.

'Sixth: Each party shall indemnify and save harmless the other party from any and all loss, damage and liability, including liability to third persons, caused by any negligence or wrongdoing on the part of the former or by its neglect to perform any of its covenants herein contained. If any loss or damage shall be suffered or any liability to third persons shall be incurred by either or both of the parties hereto by reason of the installation, maintenance or operation of any of the wires, fixtures or appliances of either of the parties hereto upon said jointly owned poles, and if the cause of such loss, damage or liability shall be the joint or concurrent negligence or wrongdoing of both parties hereto or the negligence or wrongdoing of some third party for which neither of the parties hereto is responsible, or is so obscure that it cannot be ascertained by whose negligence or wrongdoing such loss, damage or liability was caused, then in every such case each party hereto shall bear all loss and damage which it shall suffer in respect to its own property and shall bear and defray all liability which it shall incur for injury to its own employees and shall bear and defray the expenses and fees of its own attorneys and all other loss, damage or liability caused as in this paragraph specified, together with all expenses, charges and costs incurred in connection therewith, shall be borne and paid by the parties hereto jointly and in equal shares.'

During 1936, Coast Counties installed Pole No. 12,368 on Sunset Beach Road in Santa Cruz County, and equipped with electrical apparatus and wires. In 1947, Pacific Telephone, acting under the jointpole agreement purchased one-half of the bare pole and installed a telephone circuit. The pole was thereafter identified by the parties as Joint Pole 24. In 1948, Coast Counties installed additional electrical equipment. Each company inspected, maintained and repaired its own equipment on Joint Pole 24.

On August 1, 1952, Leon Pettus, who was employed as a lineman by Coast Counties, climbed Joint Pole 24 for the sole purpose of working on Coast Counties' electrical equipment. On that date, the clearance between two of Coast Counties' wires was 1/2-2 inches instead of the 6 inches required by General Order 95 of the State of California Public Utilities Commission, and one wire was so installed that it was too short for the required clearance. This condition caused the electrocution and instant death of Leon Pettus. The apparatus of Pacific Telephone on Joint Pole 24 was carefully and properly installed and maintained and did not cause or contribute to the death of Pettus.

As the heirs of Pettus were prevented by the Workmen's Compensation Act from suing Coast Counties and P. G. & E., they filed a wrongful death action against Pacific Telephone on the theory that Pacific Telephone's ownership interest in the pole made it liable to a third party for a dangerous condition, however created. In 1954, defendant Coast Counties was merged into defendant P. G. & E., which assumed all the liabilities and obligations of Coast Counties. Pacific Telephone tendered the defense of the Pettus action to P. G. & E. P. G. & E. refused the tender and refused to acknowledge any obligation under the Joint Pole Agreement. In July 1955, Pacific Telephone settled the Pettus action for the sum of $24,150. Coast Counties asserted the statutory lien of an employee because of death benefits paid (Labor Code, § 3860) against this sum and received $5,264.96. The balance was paid to the heirs of Pettus by Pacific Telephone. In September 1955, Pacific Telephone filed this suit for the indemnity provided in the agreement. The complaint stated two causes of action: the first for breach of contract; the second for negligence, and sought damages in the amount of $33,658.05, ($24,150 plus costs and attorneys fees). The case was tried without a jury. The trial court found the facts as stated above and concluded that the first portion of indemnity agreement called for complete indemnity to Pacific Telephone. Judgment for the plaintiff was entered accordingly.

P. G. & E. argues on appeal that this judgment must be reversed because: (1) The trial court ignored the written agreement and went beyond its terms to base its conclusion on common law theory of indemnity; (2) The agreement provided that each party was to defray all liability to its own employees and P. G. & E. had done so by complying with the Workmen's Compensation...