Ralke Co. v. Esquire Bldg. Maintenance Co.

• Citation: 246 Cal.App.2d 141,54 Cal.Rptr. 556
• Court: California Court of Appeals
• Decision Date: 03 November 1966
• Parties: RALKE COMPANY, Inc., a corporation, Plaintiff and Appellant, v. ESQUIRE BUILDING MAINTENANCE COMPANY, Inc., a corporation, Defendant and Respondent. Civ. 29108.

Page 556

54 Cal.Rptr. 556

246 Cal.App.2d 141

RALKE COMPANY, Inc., a corporation, Plaintiff and Appellant, v. ESQUIRE BUILDING MAINTENANCE COMPANY, Inc., a corporation, Defendant and Respondent.

Civ. 29108.

District Court of Appeal, Second District,

Division 4, California.

Nov. 3, 1966.

Hearing Denied Dec. 27, 1966.

Belcher, Henzie & Biegenzahn and William I. Chertok, Los Angeles, for plaintiff and appellant.

Wyman, Finell & Rothman and Charles L. Fonarow, Beverly Hills, for defendant and respondent.

FOX, Justice. ^*

Plaintiff Ralke Company, Inc., has appealed from a judgment of dismissal due to failure to amend its second amended complaint after the demurrer of defendant was sustained but with leave to further amend.

Based on the allegations of its amended complaint plaintiff seeks to recover damages on the theory of implied indemnity.

Plaintiff alleges that in February 1960 it entered into a written contract with defendant whereby defendant was engaged as an independent contractor to perform maintenance work on the premises where plaintiff conducted its business. Defendant agreed in said contract, Inter alia, to scrub and rinse the tile floors, apply high-grade finish and to buff floors on a monthly basis, to supply all necessary cleaning equipment, to carry necessary insurance to protect plaintiff, and defendant warranted that all of its employees were thoroughly trained, bonded, and supervised. Defendant further promised that: 'All work will be performed in a workmanlike and satisfactory manner' and agreed to perform its work in a skillful and proper manner.

On May 4, 1961, while said contract was in force, an employee of defendant created a dangerous condition by applying wet wax to the floor near the rear entrance to plaintiff's place of business during working hours, and then leaving the condition caused by the wet wax without providing any warning or safe-guards for patrons using the rear door. These acts by the employee of defendant were performed without the consent, participation or knowledge of plaintiff.

Shortly after defendant's employee left the rear entrance area in said dangerous condition, a patron of plaintiff, one Jenkins, entered the rear entrance and was caused to fall by said condition. Jenkins was injured by the fall and in July 1961 brought suit against plaintiff and defendant as joint tort-feasors. In August 1961 plaintiff demanded that defendant undertake the defense of plaintiff and hold plaintiff harmless for expenses and claims made by Jenkins. Some ten days later defendant rejected the demand.

Jenkins recovered a joint judgment against plaintiff and defendant for $15,000 plus costs of.$183.06. This judgment was rendered against plaintiff, according to the allegations of the amended complaint, on the basis of its passive or secondary negligence, because of the duty plaintiff owed to Jenkins as a business invitee. It is further alleged that plaintiff's liability was caused by the acts of defendant in creating the said dangerous condition ¹ and that plaintiff's liability was based upon an imputation of the negligence of defendant.

Plaintiff paid one-half of said judgment, namely, $7,591.53 to Jenkins, pursuant to an agreement in writing between plaintiff and defendant that such payment would not prejudice plaintiff's rights against defendant, that plaintiff did not make the payment as a volunteer and that such payment was not an admission of liability by plaintiff.

Plaintiff incurred attorneys' fees and expenses in defending the Jenkins action and will incur further expenses in this action.

Prior to commencing this action, plaintiff demanded of defendant the amount plaintiff paid in the Jenkins suit, both to Jenkins and by way of attorneys' fees, but defendant refused to pay the same. Plaintiff also alleges that in the said contract between plaintiff and defendant, defendant impliedly promised to indemnify plaintiff for any and all losses, costs, damage or liability or expense plaintiff might sustain by reason of defendant performing its work in an improper or negligent manner. Defendant performed its work in an improper and negligent manner, and defendant has breached its implied promise to indemnify by refusing to defend and hold plaintiff harmless in the Jenkins action and by refusing to reimburse plaintiff for its expenses and payments made as the result of the judgment in the Jenkins action.

Plaintiff contends that its second amended complaint alleges facts entitling it to relief upon the theory of implied indemnity. The cases upon which it principally relies: viz., San Francisco Unified Sch. Dist., v. Cal. Bldg., etc., Co., 162 Cal.App.2d 434, 328 P.2d 785; De La Forest v. Yandle, 171 Cal.App.2d 59, 340 P.2d 52; Alisal Sanitary Dist. v. Kennedy, 180 Cal.App.2d 69, 4 Cal.Rptr. 379; and Montgomery Ward & Co. v. KPIX Westinghouse Broadcasting Co., 198 Cal.App.2d 759, 18 Cal.Rptr. 341, support its position. At oral argument counsel for defendant-respondent conceded that the amended complaint on its face stated a cause of action.

'A right to implied indemnity among tortfeasors may arise out of some contractual relationship between the parties, or from equitable considerations.' (Herrero v. Atkinson, 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490, 492, 8 A.L.R.3d 629.) '* * * The right of Indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his part, has been compelled by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in Degrees of negligence or on any doctrine of Comparative negligence--a doctrine which, indeed, is not recognized by the common law; * * *. It depends on a difference in the Character or Kind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. * * * (Emphasis added by the Court.)' (Builders Supply Co. v. McCabe, 366 Pa. 322, 325--326, 77 A.2d 368, 370, 24 A.L.R.2d 319, quoted in Pierce v. Turner, 205 Cal.App.2d 264, 267--268, 23 Cal.Rptr. 115, 117.) The Pierce court later made the observation that 'the question of whether indemnity is available is usually one of fact,' (Id. p. 268, 23 Cal.Rptr. p. 118), relying on Alisal Sanitary Dist. v. Kennedy, 180 Cal.App.2d 69, 4 Cal.Rptr. 379, supra, and quoting the following from pages 79--80, 4 Cal.Rptr. page 386: '* * * The nature and scope of the relationship between the plaintiff and the defendants; the obligations owing by one to the other; the extent of the participation of the plaintiff in the affirmative acts of negligence; the physical connection of the plaintiff, if any, with the defendants' acts of negligence by knowledge or acquiescence; or the failure of the plaintiff to perform some duty it may have undertaken by virtue of its agreement--are all questions of fact that should be left to the jury.'

The Pierce court also cites San Francisco Unified Sch. Dist. v. Cal. Bldg., etc., Co., 162 Cal.App.2d 434, supra, quoting from page 449, 328 P.2d 785, at page 794: '* * * Whether the School District should be precluded from recovery (by way of indemnification) by reason of its conduct, that is, whether the conduct of the district helped to bring about the damage, is at least a question of fact and should have been left to the jury.' Herrero v. Atkinson, supra, 227 Cal.App.2d p. 74, 38 Cal.Rptr. p. 493, points out that whether or not indemnity should be allowed depends 'upon the facts of each case.'

Cahill Bros. Inc. v. Clementina Co., 208 Cal.App.2d 367, 25 Cal.Rptr. 301, relied on by defendant, is not opposed to these principles. There it was determined in the trial of the suit for indemnification that the individual who actively supervised the construction of the barricade that proved inadequate as a safeguard was acting in a dual managerial capacity for both the general contractor and the subcontractor. There could therefore be no difference in the character or kind of negligence of the parties that caused the injury to the third party. As a consequence there could be no indemnification. In the instant case it is alleged that the negligent acts of the defendant were done without the knowledge, consent or participation of plaintiff.

It is thus apparent on the face of the amended complaint that the lower court was not in a position to determine that the negligence on the part of plaintiff precludes its recovery.

The trial court sustained defendant's demurrer to the amended complaint on the ground that the court's files, of which it took judicial notice, showed that Ralke was precluded from recovering indemnity by reason of the jury's verdict in the prior Jenkins case which...