Pearson Ford Co. v. Ford Motor Co.

• Citation: 273 Cal.App.2d 269,78 Cal.Rptr. 279
• Parties: PEARSON FORD COMPANY, Cross-complainant and Respondent, v. FORD MOTOR COMPANY, Cross-defendant and Appellant. Civ. 8874.
• Decision Date: 22 May 1969
• Court: California Court of Appeals

Page 279

78 Cal.Rptr. 279

273 Cal.App.2d 269

PEARSON FORD COMPANY, Cross-complainant and Respondent, v. FORD MOTOR COMPANY, Cross-defendant and Appellant.

Civ. 8874.

Court of Appeal, Fourth District, Division 1, California.

May 22, 1969.

Hearing Denied July 16, 1969.

[273 Cal.App.2d 270] Luce, Forward, Hamilton & Scripps and Robert G. Steiner, San Diego, for appellant.

Holt, Macomber & Rhoads and Harrison Hollywood, San Diego, for respondent.

OPINION

AULT, ^* Associate Justice Pro Tem.

Cross-defendant Ford Motor Company (Ford) appeals from a judgment requiring it to indemnify cross-complainant Pearson Ford Company (Pearson) for the entire judgment ($150,000) rendered in favor of plaintiffs Tessie G. Schultz and Leroy N. Schultz, and against both Ford and Pearson after a jury trial of the main action. Plaintiffs recovered in the main action for personal injuries sustained by Mrs. Schultz in a single car accident caused by a defect in the brake system of an automobile manufactured by Ford and sold to the plaintiffs by Pearson, an authorized Ford dealer. Although plaintiffs had originally pleaded additional theories of liability, the case went to the jury solely on the theory of a manufacturer and retailer's strict liability in tort for defective manufacture or design as established in California in Vandermark v. Ford Motor Company, 61 Cal.2d 256, 37 Cal.Rptr. 896, 391 P.2d 168.

The brake defect and its causal relationship to the accident resulting in Mrs. Schultz's severe injuries were amply demonstrated at the trial, and neither Ford nor Pearson has appealed from the judgment in plaintiffs' favor. The sole question presented is whether, under the facts and circumstances of this case, the judgment on the cross-complaint which requires Ford to pay the entire judgment recovered by plaintiffs should be permitted to stand.

Where, as here, two persons are held legally responsible in tort for the injury or damage to another, the question frequently arises as to how the loss is to be apportioned between the two responsible parties. If the rule of contribution obtains, the loss is distributed equally between them. (Code Civ.Proc., §§ 875, 876; ¹ Herrero v. Atkinson, 227 Cal.App.2d 69, 73, 38 Cal.Rptr. 490, 8 A.L.R.3d 629; Atchison, Topeka & Santa Fe Ry. Co. v. Lan Franco, 267 A.C.A. 987, 990--991, 73 Cal.Rptr. 660.) If, however, one of the responsible parties is entitled to indemnity, he may shift or transfer the entire loss to the other who in equity and justice should bear it. (Cahill Bros. Inc. v. Clementina Co., 208 Cal.App.2d 367, 376, 25 Cal.Rptr. 301; Herrero v. Atkinson, Supra, 227 Cal.App.2d 69, 73, 38 Cal.Rptr. 490.) The right to implied indemnity may arise from contract or from equitable considerations. (City & County of S.F. v. Ho Sing, 51 Cal.2d 127, 130, 330 P.2d 802; Cahill Bros., Inc. Supra, 208 Cal.App.2d at 376, 25 Cal.Rptr. 301.) It is not available where the responsible parties are In pari delicto, and the fault of each is equal in grade and similar in character (Herrero v. Atkinson, Supra, 227 Cal.App.2d at 74, 38 Cal.Rptr. 490; Atchison, Topeka & Santa Fe Ry. Co. v. Lan Franco, 267 A.C.A. 987, 992, 73 Cal.Rptr. 660).

'Generally indemnity becomes a consideration when one person is exposed to liability because of what another person did. '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. '' (Atchison, Topeka, etc. at page 991, 73 Cal.Rptr. at page 663, citing from Herrero, supra, 227 Cal.App.2d at page 74, 38 Cal.Rptr. 490.)

The right to indemnify inures to a person who, without active fault on his part, is compelled by reason of legal obligation or relationship to pay damages which have been caused by the acts of another. (Ferrel v. Vegetable Oil Products Co., 247 Cal.App.2d 117, 120, 55 Cal.Rptr. 589; O'Melia v. California Production Service, Inc., 261 Cal.App.2d 618, 621, 68 Cal.Rptr. 125.) Attempts to classify the conduct of the indemnitor as 'active,' 'primary,' or 'positive' and to characterize the conduct of the indemnitee as 'passive,' 'secondary,' or 'negative' have not been too successful, and such classifications do not satisfactorily cover all cases. (Atchison, Topeka & Santa Fe Ry. Co. v. Lan Franco, Supra, 267 A.C.A. 987, 992, 73 Cal.Rptr. 660; Herrero v. Atkinson, Supra, 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490.) In spite of the vagueness of the tests to be applied, '* * * two critical prerequisites are generally necessary for the invocation of non-contractual implied indemnity in California: (1) The damages which the claimant seeks to shift are imposed upon him as a result of some legal obligation to the injured party; and (2) it must appear that the claimant Did not actively nor affirmatively participate in the wrong.' (Atchison, Topeka & Santa Fe Ry. Co. v. Lan Franco, Supra, 267 A.C.A. 987, 992, 73 Cal.Rptr. 660, 664.)

With these general principles in mind we turn to the facts of this case.

THE BRAKE DEFECT.

The brakes of the Ford automobile involved are activated by pressure on the foot pedal which is mounted on the lower end of the brake lever arm. The other end of the brake arm is attached to the frame of the car by a fulcrum pin which allows the arm and pedal to move forward and backward. Below the fulcrum pin, extending outward from the lever arm, is the master cylinder link pin or stud. The stud is round, about 1/2 in diameter and 1 in length. The stud is linked to the master cylinder by a rod with a hole near the end which slips over and around the stud. When the brake pedal is depressed, pressure is exerted on the link rod and through it into the master cylinder which activates the hydraulic system and the brakes on the wheels of the car. Also mounted on the master cylinder stud, over and around the end of the master cylinder link rod, is the stop or brake light switch. It is positioned so that slight pressure on the brake pedal causes contact between the switch button and the end of the master cylinder link rod, depressing the switch and activating the brake lights. To keep both the master cylinder link rod and the brake light switch from slipping back off the end of the stud, a hole is drilled through the diameter of the stud near its end, and a keeper pin or key is inserted in the hole.

Examination of the Ford automobile after Mrs. Schultz's accident revealed that the assembly just described had come completely apart. While the hole in the end of the stud had been drilled, the drill bit had broken off in the hole, completely blocking it. It was evident no keeper pin or key had or could have been inserted.

PEARSON'S PARTICIPATION.

Had Pearson's part in the events leading to Mrs. Schultz's accident been limited to the inspection and preparation reasonably to be required of an automobile dealer in connection with the sale and delivery of a new car, we think it would have presented a classic case for the application of the doctrine of implied indemnity. Under such circumstances, Pearson would have been exposed to loss under the legal theory of strict liability in tort because of a manufacturing defect it did not create and which it had little or no opportunity to discover or correct. There are, however, other circumstances which bring Pearson in closer proximity to the loss and from which it might be concluded that Pearson actively participated in acts or omissions which caused Mrs. Schultz's injury independently and beyond the liability imposed by reason of its position as a retailer of a defectively manufactured automobile.

Mr. and Mrs. Schultz purchased the Ford from Pearson on October 1, 1965. In December of that year the automobile was involved in a rear-end collision not related to the present litigation. The car was taken to Pearson for repairs. After the repairs were completed on January 18, 1966, Mrs. Schultz, accompanied by her grandson, Allen Glasgow, age 20, went to Pearson to pick up the car. It needed gasoline and Mrs. Schultz asked her grandson to take the car to a nearby service station while she took care of other matters. While at the station, the service station attendant noticed that the brake lights were not working. The grandson took the car back to Pearson and informed a man he believed to be the assistant service manager the brake lights were not operating. That man checked the fuses which he found to be in order and then called another Pearson employee to fix the lights. The second Pearson employee lay over the seat with his head on the floor looking under the dashboard to locate the problem. He was joined by a third Pearson employee who also positioned himself to look under the dashboard of the car. After a few moments both men got out and checked the wiring in the trunk. One of the men then got back in the car and began tapping the brake pedal with his foot while the other watched the lights from the rear of the car. The tapping of the brake pedal continued for some time and increased in force and rapidity. After awhile, the brake lights began to work intermittently and then with regularity. All in all the men spent approximately 15 minutes working on the brake light problem. A Pearson employee said, 'Well, the car is all right now. Take it.' A few moments later and seven miles down the road the brake assembly previously described fell apart and the accident happened.

The evidence indicates that at least two and possibly three of Pearson's employees were in position to...