Stambaugh v. Superior Court of Sonoma County

• Decision Date: 30 July 1976
• Parties: Howard E. STAMBAUGH, Petitioner, v. The SUPERIOR COURT OF SONOMA COUNTY, Respondent; PACIFIC GAS AND ELECTRIC COMPANY, Real Party in Interest. Civ. 38688.
• Court: California Court of Appeals Court of Appeals

Page 682

131 Cal.Rptr. 682

60 Cal.App.3d 651

Howard E. STAMBAUGH, Petitioner, v. The SUPERIOR COURT OF SONOMA COUNTY, Respondent PACIFIC GAS AND ELECTRIC COMPANY, Real Party in Interest.

Civ. 38688.

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

July 30, 1976.

For Opinion on Rehearing see 132 Cal.Rptr. 843.

Geary, Geary, Shea, Pawson & O'Donnell, Michael F. O'Donnell, Santa Rosa, for petitioner.

Charles T. Van Deusen, Noel Kelly, San Francisco, for real party in interest.

ELKINGTON, Associate Justice.

This original proceeding in mandate concerns the effect of Li v. Yellow Cab Co. (1975) 13 Cal.3d 804, 119 Cal.Rptr. 858, 532 P.2d 122l (hereafter 'Li'), and Code of Civil Procedure section 877, upon a tortfeasor who has settled a damage claim for a tort alleged to have been jointly committed by him and other tortfeasors.

Li abolished California's 'contributory negligence' defense and replaced it with a 'comparative negligence' rule.

Section 877 (enacted 1957) deals with the effect of a release given in 'good faith' before verdict or judgment to one joint tortfeasor, upon the rights and obligations of others.

Certain uncontroverted facts of the case follow.

Howard E. Stambaugh, the petitioner of this proceeding, was involved in a motor vehicle accident which resulted in the death of one Carter (hereafter 'decedent'). Prior to any action thereon, he settled a wrongful death claim with decedent's heirs by payment of $25,000, the full amount of his insurance coverage. Stambaugh received from the heirs a release from further liability. The release applied to him alone; it did not purport to release any other joint tortfeasor. Decedent's heirs thereafter commenced an action against Pacific Gas and Electric Company (hereafter 'P G and E') and other claimed joint tortfeasors, for decedent's wrongful death in relation to the same motor vehicle accident. P G and E cross-complained, bringing Stambaugh into the action as an alleged joint tortfeasor.

The relief sought by P G and E was that the 'court determine the extent to which [Stambaugh's] negligence proximately contributed to the death of the decedent Charles C. Carter, and that judgment against said cross-defendant be entered accordingly.'

Stambaugh moved for summary judgment, or judgment on the pleadings, in respect of the cross-complaint. On the motion the facts of Stambaugh's settlement with the deceased's heirs and their release to him were established as a matter of law.

The superior court denied Stambaugh's motion. Thereafter, on his petition, we issued an alternative writ of mandate in order to test the validity of the superior court's order.

We first consider the holding of Li.

The high court, having considered many 'variants' of the comparative negligence rule, settled upon 'the so-called 'pure' form of comparative negligence [which] apportions liability in direct proportion to fault in all cases' (13 Cal.3d, p. 827, 119 Cal.Rptr. p. 874, 532 P.2d p. 1242; emphasis ours). It then stated: '[I]n all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering' (P. 829, 119 Cal.Rptr. p. 875, 532 P.2d p. 1243).

American Jurisprudence, Second Edition, has elaborated upon the 'pure' form of comparative negligence adopted by Li. That work states: 'As far as the right of the injured person to recover judgment against all, if there are more than one, of the tortfeasors who have caused his injury is concerned, no problem arises under a comparative negligence statute of the 'pure' type which permits an injured person to recover some part of his damages whether or not the degree or proportion of his negligence equals or exceeds that of the persons who injured him, and under such statutes it is immaterial that the injury was caused by the negligent conduct of two or more tortfeasors. . . . [E]ven though recovery against one joint tortfeasor who is liable for the injuries suffered by the claimant is impossible or improbable because he is uninsured and judgment proof, the other tortfeasor or tortfeasors are liable for the full amount recoverable, even though the causal negligence attributable to them is relatively minor. . . . [T]he apportionment of negligence among multiple defendants on whom liability may be imposed under a comparative negligence statute does not alter the common-law rule that all of those liable are liable to the injured person for the entire amount of damages recoverable by him, . . .' (57 Am.Jur.2d, Negligence, §§ 433, 435, 436, pp. 854-855, 860, 861; and see authority there collected.)

One of the authorities principally relied upon by the Li court was a treatise of Professor Victor E. Schwartz of the College of Law of the University of Cincinnati. He states: 'The concept of joint and several liability of tortfeasors has been retained under comparative negligence, unless the statute specifically abolishes it, in all states that have been called upon to decide the question.' (Schwartz, Comparative Negligence (1974) § 16.4, p. 253.)

From the foregoing, Li will be seen to have introduced but two changes in this state's law of negligence. First, the concept of denial of any recovery for contributory negligence is abolished, and secondly, the tort claimant will have deducted from the total damages suffered by him, such amount as is directly proportionate to the extent that his own negligence contributed to the total negligence which proximately caused his total damages.

No purpose is seen in Li to abrogate the well-known rule of joint and several liability of joint tortfeasors, expressed by Mr. Witkin in this manner:

'Contributory wrongdoers, whether joint tortfeasors or concurrent or successive tortfeasors, are ordinarily jointly and severally liable for the entire damage. . . . [p] Hence, when they are joined in an action it is improper to apportion compensatory damages among them; judgment for the full amount should be rendered against each.' (4 Witkin, Summary of Cal.Law (8th ed. 1974) Torts, § 35, p. 2333, and see authority there collected.)

Nor, in our opinion, does Li disturb another long-standing principle of tort law, that as to joint and several tortfeasors: '[T]hey are all jointly and severally liable, as the injured party may elect. The injured party may sue all or any of them jointly, or each separately, or, having secured a joint judgment against all, enforce such judgment by execution against one only, the only limitation being that he can have but one satisfaction for the injury that he has received.' (Fowden v. Pacific Cast Steamship Co., 149 Cal. 151, 157, 86 P. 178, 180; see also General Electric Co. v. State of Cal. ex rel. Dept. Pub. Wks., 32 Cal.App.3d 918, 926, 108 Cal.Rptr. 543; Balding v. D. B. Stutsman, Inc., 246 Cal.App.2d 559, 562, 54 Cal.Rptr. 717; Thornton v. Luce, 209 Cal.App.2d 542, 551-552, 26 Cal.Rptr. 393; Frazzini v. Cable, 114 Cal.App. 444, 453, 300 P. 121; Rest., Torts, § 882.)

I. P G and E contends that Li must be construed as holding that each of several contributing joint tortfeasors, whether or not joined as a defendant, is liable to the plaintiff in damages, but only in the proportion that his negligence bears to the total negligence (i. e., that of all contributing joint tortfeasors and plaintiff) which proximately caused plaintiff's damages. This necessary apportioning of fault and assignment of liability to each of the joint tortfeasors can only be accomplished, it is urged, by bringing all of them before the court, since they have by virtue of Li become 'indispensable parties' to the action according to Code of Civil Procedure section 389. Applying this rationale to the case at bench, P G and E insists that since Stambaugh was not joined as a defendant by the plaintiff heirs, he was properly brought in as a party by its cross-complaint. ¹

As pointed out, we see nothing in Li suggesting the conclusion sought by P G and E. And such a conclusion necessarily implies abandonment of the above-mentioned rule of joint and several liability of joint tortfeasors, and that permitting an injured party to select one or more of several joint tortfeasors as the objects of his claim.

We find it notable that, called upon to construe and implement Li, the highly respected Committee on Standard Jury Instructions of the Superior Court of Los Angeles County has developed and recommended jury instructions. These instructions give continued effect to the principle of joint and several liability of joint tortfeasors. (See Cal. Jury Instns., Civ. (cumulative pocket part for 5th rev. ed. 1975) Nos. 14.93-14.96.)

We have considered P G and E's argument that its interpretation of Li is mandated by the language of that case, which states that the fundamental purpose of the new comparative negligence rule 'shall be to assign responsibility and liability for damage in direct proportion to the amount of negligence of each of the parties' (13 Cal.3d, p. 829, 119 Cal.Rptr., p. 875, 532 P.2d, p. 1243).

The excerpt does appear to lend some weight to P G and E's contention. But it will be noted that Li was concerned with a two-party case, with a plaintiff and a defendant. ² That the reference to 'each of the parties' was to the more frequent 'plaintiff and defendant' relationship seems clear from Li's holding that: '[I]n all actions for negligence resulting in injury to person or property, the contributory negligence of the person injured in person or property shall not bar recovery, but the damages awarded shall be diminished in proportion to the amount of negligence attributable to the person recovering.' (13 Cal.3d, p. 829, 119 Cal.Rptr., p. 875, 532 P.2d, p. 1243.) The complete holding is at least equally consistent with an intent that a plaintiff's award be diminished according...