Provencal v. Parker

• Decision Date: 06 January 1976
• Docket Number: Docket No. 21473--4
• Citation: 66 Mich.App. 431,239 N.W.2d 623
• Parties: John D. PROVENCAL and Rose Ann Provencal, Plaintiffs, v. Robert PARKER, Defendant and Third Party Plaintiff, Cross-Appellee, v. Arthur ROHN, Jr., individually and d/b/a Arthur Rohn Painters & Decorators, Third Party Defendant and Fourth Party Plaintiff-Appellee and Cross-Appellant, v. Samuel PARKER, Fourth Party Defendant-Appellant. 66 Mich.App. 431, 239 N.W.2d 623
• Court: Court of Appeal of Michigan — District of US

Page 623

239 N.W.2d 623

John D. PROVENCAL and Rose Ann Provencal, Plaintiffs, v. Robert PARKER, Defendant and Third Party Plaintiff, Cross-Appellee, v. Arthur ROHN, Jr., individually and d/b/a Arthur Rohn

Painters & Decorators, Third Party Defendant and Fourth Party Plaintiff-Appellee and Cross-Appellant, v. Samuel PARKER, Fourth Party Defendant-Appellant.

Docket No. 21473--4.

66 Mich.App. 431, 239 N.W.2d 623

Court of Appeals of Michigan.

Jan. 6, 1976.

Released for Publication March 23, 1976.

[66 MICHAPP 433] Coticchio, Zotter & Sullivan by Timothy J. Sullivan, Detroit, for Samuel Parker and Robert Parker.

Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen by Robert H. Martin, Southfield, for Rohn and Rohn Painters.

Ronald R. Gilbert, Detroit, for Provencal.

[66 MICHAPP 434] Before V. J. BRENNAN, P.J., and BASHARA and J. H. GILLIS, JJ.

BASHARA, Judge.

This is an appeal arising out of an automobile negligence action. The facts appear to be confusing because of the number of parties involved.

On February 20, 1969 the fourth party defendant, Samuel Parker (hereinafter referred to as Samuel), borrowed a car owned by his son to drive to work. The son was the original defendant, Robert Parker (hereinafter referred to as defendant). Samuel was employed as a painter by the third party defendant, Arthur Rohn Jr. (hereinafter referred to as the employer).

At work the employer directed Samuel to proceed to another painting job. Samuel went to his car and encountered difficulty starting it due to a discharged battery. The plaintiff, a co-employee of Samuel, offered assistance in jump-starting the car. The plaintiff pulled his car up to face Samuel's car and attached jumper cables to both cars. In the process of starting the disabled car, Samuel's car slipped into gear and rolled forward pinning the plaintiff between both cars and seriously injuring him.

Plaintiff sued defendant as owner of the car under the owner's liability statute. M.C.L.A. § 257.401; M.S.A. § 9.2101. The defendant instituted a third party complaint for indemnification against the employer, and in turn, the employer instituted a fourth party complaint for indemnification against Samuel. GCR 1963, 204.

On stipulation of the parties the only issues submitted to the jury were those of liability of the defendant and damages to the plaintiff in the principal case. A jury verdict was returned in [66 MICHAPP 435] favor of the plaintiff. Immediately following the jury verdict the attorneys representing the employer and Samuel stipulated to the above facts and submitted the matter of indemnification to the trial judge. The court found that the defendant was entitled to indemnification from the employer on the basis of the holding in Dale v. Whiteman, 388 Mich. 698, 202 N.W.2d 797 (1972). Likewise, the employer was entitled to indemnification from Samuel on the same theory. Samuel appeals and the employer cross-appeals.

On Appeal, Samuel argues that the employer is not entitled to indemnity because the Workmen's Compensation Act, M.C.L.A. § 413.15; M.S.A. § 17.189, ¹ prohibits an employee from suing a co-employee for injuries arising out of the course and scope of employment. It is Samuel's position that to indemnify the employer would circumvent the policy of the Workmen's Compensation Act by allowing an employee to do indirectly what he could not do directly. We need not reach this question because we hold that the defendant was not entitled to indemnification from the employer.

Indemnification rests upon the equitable principle of a right to restitution. Dale v. Whiteman, supra. The theory of indemnity is that where the wrongful act of one results in liability being imposed on another, such other person may have indemnity from the person actually guilty of the wrong. Hart Twp. v. Noret, 191 Mich. 427, 158 N.W. 17 (1916); Detroit, G.H. & M.R. Co. v. Boomer, 194 Mich. 52, 160 N.W. 542 (1916); Village of Portland v. Citizens' Telephone Co., 206 Mich. 632, 173 N.W. 382 (1919); Indemnity Insurance Co. of North America [66 MICHAPP 436] v. Otis Elevator Co., 315 Mich. 393, 24 N.W.2d 104 (1946). The party seeking indemnity must plead and prove freedom on his part from personal fault. Indemnity Insurance Co. of North America v. Otis Elevator Co., supra; Husted v. Consumers Power Co., 376 Mich. 41, 135 N.W.2d 370 (1965). This has been interpreted to mean that the party seeking indemnity must be free from active or causal negligence, McLouth Steel Corp. v. A. E. Anderson Construction Corp., 48 Mich.App. 424, 210 N.W.2d 448 (1973), Lv. den., 391 Mich. 754 (1973); Nanasi v. General Motors Corp., 56 Mich.App. 652, 224 N.W.2d 914 (1974). There is no right of indemnification between actual joint tortfeasors or tortfeasors in pari delicto. Detroit, G.H. & M.R. Co. v. Boomer, supra; Village of Portland v. Citizens Telephone Co., supra.

Since indemnification is founded upon equitable principles, a claim for indemnity will only lie against a party guilty of 'active' negligence. Such a claim arises where two parties are liable to the injured person, but the injury results from a violation by one of the duty which he owes to the injured person. As between the two tortfeasors the act or omission of the one from whom indemnity is sought must be the primary cause of the injury. See Daly v. Bergstedt, 267 Minn. 244, 126 N.W.2d 242 (1964). ²

Our consideration of the principles of indemnity revolves around the application of Dale v. Whiteman, supra, to the present case. In Dale the defendant brought his car to Goldfarb's car wash to be cleaned. The car was pulled through the car wash by a chain. Fox, an employee of Goldfarb, drove the car off the line and over to the drying area where he hit the plaintiff, a co-employee who [66 MICHAPP 437] was in the process of drying another car. The plaintiff recovered against the defendant under the owner's liability statute. The defendant, in turn, sought indemnification from Goldfarb. The Court in awarding the defendant indemnification stated 'In this case, the right to indemnity might be predicated upon the theory of a bailment * * *. Or it might be implied as a part of the undertaking of Goldfarb to wash the car in a workmanlike fashion * * *. We prefer to base such right upon the equitable principle that Whiteman was without personal fault or as the United States Supreme Court reasoned in Italia Societa per Azioni di Navigazione v. Oregon Stevedoring Co. Inc., 376 U.S. 315, 324, 84 S.Ct. 748, 754, 11 L.Ed.2d 732 (1964); '(L)iability should fall upon the party best situated to adopt preventive measures and thereby to reduce the likelihood of injury." Dale v. Whiteman, supra, 388 Mich. at 706, 202 N.W.2d at 800.

The holding in Dale is unclear and is susceptible to two possible constructions. One possibility is that the right of indemnity was predicated on either the 'active' tortfeasor theory or the implied warranty theory used in Italia, supra. However, it seems unlikely that liability was predicated on the implied undertaking theory because the Dale Court did not prefer to base Goldfarb's liability on an implied undertaking.

A second possible construction is that the language taken from Italia in Dale only explains the type of negligence, either active or passive, attributable to Goldfarb. Looking at the quote from Italia in context is instructive:

'(L)iability should fall upon the party best situated to adopt preventive measures and thereby to reduce the likelihood of injury. Where, as here, injury-producing and defective equipment is under the supervision and control of the stevedore, the shipowner is powerless to [66 MICHAPP 438] minimize the risk; the stevendore is not.' (Emphasis supplied.) Italia Societa per Azioni di Navigazione, supra, 376 U.S. 324, 84 S.Ct. 754.

We adopt this construction and find Dale to stand for the proposition that the car owner defendant was a passive tortfeasor and was entitled to indemnification against the car wash owner Goldfarb, on the basis that Goldfarb was...