Sanders v. Atchison, Topeka & Santa Fe Ry. Co.

• Decision Date: 05 January 1977
• Court: California Court of Appeals Court of Appeals
• Parties: James Edward SANDERS, Plaintiff, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Defendant, Cross-Complainant, Cross-Defendant, Respondent and Appellant, Spokane Flour Mills Co., Defendant, Cross-Complainant, Respondent and Appellant, Transco, Inc., Cross-Defendant, Appellant and Respondent. Civ. 36342.

Page 555

135 Cal.Rptr. 555

65 Cal.App.3d 630

James Edward SANDERS, Plaintiff, v. The ATCHISON, TOPEKA & SANTA FE RAILWAY CO., Defendant, Cross-Complainant, Cross-Defendant, Respondent and Appellant, Spokane Flour Mills Co., Defendant, Cross-Complainant, Respondent and Appellant, Transco, Inc., Cross-Defendant, Appellant and Respondent.

Civ. 36342.

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

Jan. 5, 1977.

Ralph A. Lombardi, Hardin, Cook, Loper, Engel & Bergez, Oakland, for Atchison, T. & S.F. Ry. Co.

Robert M. Davis, Berry, Davis & McInerney, Oakland, for Spokane Flour Mills Co.

Donald R. Brophy, Hanna, Brophy, MacLean, McAleer & Jensen, San Francisco, for Transco, Inc.

SIMS, Associate Justice.

Transco, Inc., the manufacturer of a railroad boxcar divider door, The Atchison, Topeka & Santa Fe Railway Company, the owner of the boxcar in which the divider door was installed, and Spokane Flour Mills Co., the shipper that last used the boxcar, have each appealed from a judgment entered following a trial on the respective cross-complaints for indemnity of the railroad and the shipper. The judgment apportioned among them the net amount of the damages ¹ against the shipper to an employee of the consignee of the shipment who was injured when the divider door fell on him as he prepared to unload the boxcar. The manufacturer and the railroad have also each appealed from an earlier judgment, entered following the trial of the principal action, which reflects the jury's finding, in response to a special interrogatory, that the negligence of the shipper was passive, and from orders which denied their respective motions for judgment notwithstanding the verdict in connection with that earlier judgment. ²

The manufacturer and the railroad contend that the evidence reflects that the shipper was actively negligent as a matter of law, whereas, the shipper contends that the verdict and a finding that its negligence was passive are sustained by the evidence. The manufacturer and the shipper assert that the evidence sustains the findings concerning the negligence of the railroad, and that such negligence, contrary to the position of the railroad, was active and was a proximate cause of the injuries to the plaintiff. The shipper and the railroad claim, with respect to the manufacturer's appeal, that the evidence supports the findings of the trial court which reflect negligence on the part of the manufacturer contributing to the accident.

The court apportioned the net damages of $180,000 in the ratio of $100,000 to the railroad, $40,000 to the shipper, and $40,000 to the manufacturer. The railroad and the shipper contest this apportionment as inconsistent with established principles of implied indemnity. The shipper claims to be entitled to full indemnity, and the railroad asserts that the manufacturer should share equally with it if the other findings are sustained. The manufacturer defends the principle of equitable apportionment insofar as it is found responsible to indemnify or to contribute.

It is concluded that the trial court erred in apportioning the damages under the law in effect at the time of trial; that there is sufficient evidence to sustain the finding that the negligence of the shipper was passive, but that other findings and conclusions of the court are inconsistent with that finding; that there is sufficient evidence to sustain the findings that the railroad was negligent and that its negligence was a proximate concurring cause of the accident; and that there was insufficient evidence to impose liability on the manufacturer. The final judgment must be reversed. The other appeals are dismissed as there was no final judgment or order from which to appeal.

I

We first approach the issue of apportionment of liability because it goes right to the heart of the judgment. The railroad filed its 'Cross Complaint for Declaration (sic) Relief' in which it alleged that there was for any alleged injuries sustained by the manufacturer concerning the latter's liability for any alleged injuries sustained by the plaintiff. It requested a declaration that the manufacturer was liable 'in implied indemnity' for any judgment plaintiff might obtain against the railroad. In a second cause of action the railroad alleged that its negligence, if any, in purchasing the door was passive, and the manufacturer's negligence in manufacturing the door was active. The manufacturer denied the material allegation of the railroad's cross-complaint other than the sale and purchase of the door, and alleged acts of negligence on the part of the railroad. The shipper in its cross-complaint alleged that the railroad and the manufacturer were negligent in furnishing a defective car, and that it was guilty of no active negligence. It sought a carry-over judgment for any amount that might be awarded to plaintiff and against it. The railroad answered, denying its negligence and asserting the active negligence of the shipper. The manufacturer did likewise.

It clearly appears that the parties were proceeding under the theory of implied indemnity. 'Indemnity may be defined as the obligation resting on one party to make good a loss or damage another party has incurred. (Citation.)' (Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Cal.3d 622, 628, 119 Cal.Rptr. 449, 452, 532 P.2d 97, 100.) In this case we are not concerned with any contract of indemnity. The claims of the shipper and the railroad must rest on 'the principle of implied indemnity, which permits one of two tortfeasors to shift the entire loss to the other when, without active fault on the claimant's part, he has been compelled by reason of some legal obligation to pay damages occasioned by the immediate fault of the other. As a rough rule of thumb, the decisions allowing indemnity speak of the 'passive' fault of the claimant as compared with the 'active' fault of the indemnitor. Standing alone, the passive-active fault criterion is too vague to serve as a decisional guide. The standard most frequently applied by the California appellate courts is one drawn from an opinion of the Pennsylvania Supreme Court in Builders Supply Co. v. McCabe, 366 Pa. 322, 325--326 (77 A.2d 368, 24 A.L.R.2d 319): '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. . . . 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. . . . But the important point to be noted in all the cases is that secondary as distinguished from primary liability rests upon a fault that is imputed or constructive only, being based on some legal relation between the parties, or arising from some positive rule of common or statutory law or because of a failure to discover or correct a defect or remedy a dangerous condition caused by the act of the one primarily responsible. '' (Ford Motor Co. v. Robert J. Poeschl, Inc. (1971) 21 Cal.App.3d 694, 696--697, 98 Cal.Rptr. 702, 703--704 (fn. collecting cases applying the Pennsylvania formulation omitted). See also Ford v. Hites (1975) 47 Cal.App.3d 828, 832, 121 Cal.Rptr. 131; General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks. (1973) 32 Cal.App.3d 918, 921--923, 108 Cal.Rptr. 543; Standard Oil Co. v. Oil, Chemical, etc., Internat. Union (1972) 23 Cal.App.3d 585, 588, 100 Cal.Rptr. 354; Pearson Ford Co. v. Ford Motor Co. (1969) 273 Cal.App.2d 269, 271--273, 78 Cal.Rptr. 279; Atchison, T. & S.F. Ry. Co. v. Lan Franco (1968) 267 Cal.App.2d 881, 885--887, 73 Cal.Rptr. 660; Ferrel v. Vegetable Oil Products Co. (1966) 247 Cal.App.2d 117, 120--121, 55 Cal.Rptr. 589; Herrero v. Atkinson (1964) 227 Cal.App.2d 69, 74, 38 Cal.Rptr. 490; and Cahill Bros., Inc. v. Clementina Co. (1962) 208 Cal.App.2d 367, 380--382, 25 Cal.Rptr. 301. Note, Contribution and Indemnity (1969) 57 Cal.L.Rev. 490; and Molinari, Tort Indemnity in California (1967) 8 Santa Clara Lawyer 159.)

There is a well recognized distinction between indemnity and contribution. In Herrero v. Atkinson, supra, the court observed, 'It is important to note that both cross-complaints seek indemnity and not contribution. There is a distinction between the two rights. Indemnity seeks to transfer the entire loss imposed upon one tortfeasor to another who in justice and equity should bear it. Contribution distributes the loss equally among all tortfeasors, each bearing his prorata share. (Code Civ.Proc., §§ 875, 876; Cahill Bros. Inc. v. Clementina Co., 208 Cal.App.2d 367, 376, 25 Cal.Rptr. 301 . . .; Prosser, Torts, p. 249.) Where one tortfeasor is entitled to indemnity from the other, the right of contribution does not exist. (Code Civ.Proc. § 875(f)).' (227 Cal.App.2d at pp. 73--74, 38 Cal.Rptr. at p. 492. See also General Electric Co. v. State of California ex rel. Dept. Pub. Wks., supra, 32 Cal.App.3d 918, 925--926, 108 Cal.Rptr. 543, and Atchison, T. & S.F. Ry. Co. v. Lan Franco, supra, 267 Cal.App.2d 881, 884--885, 73 Cal.Rptr. 660.) It is clear that in this case the shipper is not entitled to contribution. As a condition to contribution there must be a money judgment rendered jointly against two or more defendants. (Code Civ.Proc., § 875, subd. (a); General Electric Co. v. State of California ex rel. Dept. Pub. Wks., supra, 32 Cal.App.3d 918, 925--926, 108 Cal.Rptr. 543.) Moreover, even among judgment debtors, when one tortfeasor is entitled to indemnity from another, he is not entitled to contribution. (Code Civ.Proc., § 875, subd. (f); Herrero v. Atkinson, supra, 227 Cal.App.2d 69, 73--74, 38 Cal.Rptr. 490.)

It would appear, therefore, that...