Sammer v. Ball

• Decision Date: 02 November 1970
• Citation: 91 Cal.Rptr. 121,12 Cal.App.3d 607
• Court: California Court of Appeals Court of Appeals
• Parties: Muriel M. SAMMER, Cross-Complainant and Respondent, v. Frank BALL and June Ball, Cross-Defendants and Appellants. Civ. 1207.

Page 121

91 Cal.Rptr. 121

12 Cal.App.3d 607

Muriel M. SAMMER, Cross-Complainant and Respondent, v. Frank BALL and June Ball, Cross-Defendants and Appellants.

Civ. 1207.

Court of Appeal, Fifth District, California.

Nov. 2, 1970.

[12 Cal.App.3d 609] Carlson, Collins & Bold and Frederick Bold, Jr., Richmond, for appellants.

Cardozo, Trimbur & Nickerson, and Paul L. Martelli, Modesto, for respondent.

OPINION

GARGANO, Acting Presiding Judge.

Appellants Frank and June Ball appeal from a judgment entered on a cross-complaint. The facts, as gleaned from the settled statement and the depositions are these:

In 1961 appellants acquired certain commercial property in Ceres, California, known as the Lazy Wheels Trailer Park. Appellants decided to increase the number of trailer spaces and engaged Paul Holmdhal to prepare the drawing which was needed to acquire state and city approval. The drawing Holmdhal prepared designated six-inch sewer lines to accommodate the new spaces and contained a note stating, '3/4 water line with 3/4 riser and 1/2 branch takeoff * * *.' Appellants gave one copy of the drawing to the state inspector and one to Mr. Carlin, their plumber, to take to the building official of the City of Ceres in order to secure a building permit. They kept one copy at the trailer park.

At the building office, Carlin was told that four-inch sewer lines were sufficient, and a permit was issued accordingly; the unrevised drawing was placed in the building officer's file.

In January, 1962, appellants sold the Lazy Wheels Trailer Park to respondent Muriel M. Sammer; they left their copy of the drawing at the trailer park, and Mrs. Sammer used it to make notes about trailer spaces. In March, 1963, Mrs. Sammer sold the property to Ralph, Ozzie and Dominik Caloiaro. Prior to the sale, she told Ralph Caloiaro that the trailer park was serviced by six-inch sewer lines and a one-inch water main. When the Caloiaros discovered that the sewer lines were four inches and the water main was a half inch, they brought this action against Mrs. Sammer for damages. Respondent in turn filed a cross-complaint against appellants, alleging that appellants falsely and fraudulently misrepresented the sizes of the sewer lines and the water main to her.

At the conclusion of a one-day court trial, the trial judge filed a decision ordering judgment in favor of the plaintiffs Caloiaro, on their complaint. The court ordered judgment in favor of the cross-defendants on the cross-complaint, stating that the cross-complaint was not for indemnification but was 'an outright declaration of the fact that the Sammers had been damaged by reason of misrepresentation of the Balls, and there is nothing in the Cross-Complaint that gives this court any power whatsoever to grant a judgment on behalf of the Sammers as against the Balls.' Mrs. Sammer, then, filed a memorandum pointing out that whether she was entitled to indemnification against appellants was made an issue in the pretrial order; the pretrial order was adopted before appellants appeared in the action, but their counsel stipulated that the matter could proceed to trial without further pretrial conference proceedings. Upon receiving the memorandum, the court reopened the trial on the issue of damages. Afterward, the court entered judgment in favor of respondent on the cross-complaint on the theory of implied indemnity.

Indemnity is defined as the obligation resting on one person to make good any loss or damage another has incurred. While generally it rests on contract, it may also arise by implication as the result of equitable considerations (City and County of San Francisco v. Ho Sing, 51 Cal.2d 127, 330 P.2d 802; Peters v. City and County of San Francisco, 41 Cal.2d 419, 260 P.2d 55), and 'the determination of whether or not indemnity should be allowed must of necessity depend upon the facts of each case.' (Herrero v. Atkinson, 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490, 493.) Furthermore, the party seeking indemnification must prove that he did not actively or affirmatively participate in the wrong which caused the injury beyond the mere failure to perform a duty imposed upon him by law (Cahill Bros. Inc. v. Clementina Co., 208 Cal.App.2d 367, 25 Cal.Rptr. 301). As Mr. Witkin puts it, the right of indemnity 'enures to a person who, without 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.' (Witkin, Summary of Calif.Law, 1969 Supp. to Vols. I and II, Torts, § 22a, pp. 503--505.)

We have concluded that the judgment must be reversed. The court's decision that Muriel M. Sammer was...