Standard Oil Co. v. Oil, Chemical etc. Internat. Union

• Decision Date: 17 February 1972
• Citation: 23 Cal.App.3d 585,100 Cal.Rptr. 354
• Court: California Court of Appeals Court of Appeals
• Parties: STANDARD OIL COMPANY OF CALIFORNIA, a corporation, et al., Cross-complainants and Appellants, v. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFLCIO, an unincorporated association, et al., Cross-Defendants and Respondents. Civ. 28310.

Page 354

100 Cal.Rptr. 354

23 Cal.App.3d 585

STANDARD OIL COMPANY OF CALIFORNIA, a corporation, et al., Cross-complainants and Appellants, v. OIL, CHEMICAL AND ATOMIC WORKERS INTERNATIONAL UNION, AFLCIO, an unincorporated association, et al., Cross-Defendants and Respondents.

Civ. 28310.

Court of Appeal, First District, Division 3, California.

Feb. 17, 1972.

Hearing Denied April 12, 1972.

Pillsbury, Madison & Sutro, Noble K. Gregory, Anthony P. Brown, San Francisco, and Cox & Cummins, James E. Cox, Martinez, for appellants.

Ricksen, Ricksen, Snook & Vendt, rupert H. Ricksen, Oakland, Richard G. Logan, Oakland, of counsel, for respondents (Oil, Chemical and Atomic Workers International Union AFL--CIO and Joseph Misbrenner).

Hanna & Brophy, San Francisco, for respondents (Local 1--5 of Oil, Chemical and Atomic Workers, etc., et al.).

CALDECOTT, Associate Justice.

Hannah M. Jones (not a party to this appeal) filed a complaint for wrongful death of her husband Richard E. Jones. Named as defendants were Standard Oil Company of California (Standard), and four of Standard's employees. (Appellants in the instant action.)

Appellants filed their answer and simultaneously filed a cross-complaint against the Oil, Chemical and Atomic Workers International Union, AFL-CIO and its representative; Locals 1--5 of the Oil, Chemical and Atomic Workers Union and its secretary; and various named members of the two unions. (Respondents in the instant action.) This cross-complaint sought declaratory relief, that if appellants should become liable to plaintiffs (Jones), appellants would be entitled to indemnity from the respondents.

Respondents demurred to the cross-complaint for indemnity on the ground that the cross-complaint did not state facts sufficient to constitute a cause of action. The demurrers were sustained with leave to amend. Appellants filed an amended cross-complaint. Each respondent filed a demurrer to the amended cross-complaint, again alleging failure to state a cause of action. The court sustained the demurrer without leave to amend. Judgment was entered dismissing appellants' cross-complaint for indemnity. The appeal is from the judgment.

The facts as stated by the appellants and accepted by the respondents are as follows: 'Hannah M. Jones, Richard E. Jones, Jr., Michael Jones, and Talman Jones instituted a wrongful death action against the appellants (Standard Oil Company of California, Robert S. Proctor, Harold Haburn, Carl Sherwood and Warren Sears) for the death of Richard Ellsworth Jones. The amended complaint alleged that a dispute broke out between Oil, Chemical and Atomic Workers International Union, AFL-CIO and Local 1--5 thereof and various oil companies. That complaint further alleged that on January 5, 1969, as a direct and proximate result of the negligence of the individual appellants, Sears drove a truck and trailer owned by the corporate appellant over Richard Ellsworth Jones, causing serious injury and his eventual death.

'Appellants answered, denying that the death of Richard Ellsworth Jones was proximately caused by their alleged negligence, and cross-complained against the respondents. The amended cross-complaint prayed for a judgment that appellants be entitled to indemnity from respondents (the two unions, their respective representatives and their members who participated in the wrongful acts complained of) for any amount for which appellants may be held liable to plaintiffs in the main action.

'The amended cross-complaint alleged that the injuries to Richard Ellsworth Jones occurred while appellants were lawfully attempting to use the public highways adjacent to the corporate appellant's facility at Avon, Contra Costa County, California. Appellant Sears had come to a complete halt and then drove forward carefully at not more than two miles per hour, complying with all laws and ordinances covering the movement of motor vehicles. Respondents, however, used force and violence in an attempt to prevent appellants from moving the truck and trailer into the corporate appellant's property; assaulted appellant Sears by threatening him with bodily harm and by damaging the truck he was operating; and conspired to prevent appellant Sears from seeing the decedent and from receiving signals or instructions regarding the movement of the truck and trailer.

'It was alleged that the foregoing acts by respondents were either 'active negligence' or 'willful acts' and were the proximate cause of the injuries sustained and the resulting death of Richard Ellsworth Jones.'

The basic issue on this appeal is whether the amended cross-complaint states a cause of action. As stated in Pearson Ford Co. v. Ford Motor Co., 273 Cal.App.2d 269, 271--272, 78 Cal.Rptr. 279, 281, 'Where, as here, two persons are held legally responsible in tort fot the injury or damage to another, the question frequently arises as to how the loss is to be apportioned between the two responsible parties. If the rule of contribution obtains, the loss is distributed equally between them. (Code Civ.Proc. §§ 875, 876; Herrero v. Atkinson, 227 Cal.App.2d 69, 73, 38 Cal.Rptr. 490, 8 A.L.R.3d 629; Atchison, Topeka & Santa Fe Ry. Co. v. Lan Franco, 267 Cal.App.2d 881, 884--885, 73 Cal.Rptr. 660.) ¹ If, however, one of the responsible parties is entitled to indemnity, he may shift or transfer the entire loss to the other who in equity and justice should bear it. (Cahill Bros., Inc. v. Clementina Co., 208 Cal.App.2d 367, 376, 25 Cal.Rptr. 301; Herrero v. Atkinson, supra, 227 Cal.App.2d 69, 73, 38 Cal.Rptr. 490.) The right to implied indemnity may arise from contract or from equitable considerations. (City & County of San Francisco v. Ho Sing, 51 Cal.2d 127, 130, 330 P.2d 802; Cahill Bros., Inc., Supra, 208 Cal.App.2d at 376, 25 Cal.Rptr. 301.) It is not available where the responsible parties are in pari delicto, and the fault of each is equal in grade and similar in character. (Herrero v. Atkinson, Supra, 227 Cal.App.2d at 74, 38 Cal.Cal.Rptr. 490; Atchison, Topeka & Santa Fe Ry. Co. v. Lan Franco, 267 Cal.App.2d 881, 886, 73 Cal.Rptr. 660.)' In this case there is no question of contractual indemnity. The case involves implied indemnity only.

Appellants contend that they are entitled to indemnity from respondents if they can show that respondents' acts were 'reckless' or 'intentionally wrongful' and that the respondents knew of the peril and could have avoided it. Appellants further contend that the trial court concluded that if appellants were liable to plaintiff (Jones) in the principal action, it would be because of their so-called active negligence which the trial court erroneously held would bar indemnity under any theory, when in fact appellants under the Restatement of Restitution section 97, are entitled to indemnity. Section 97 states: 'A person whose negligent conduct combined with the reckless or intentionally wrongful conduct of another has resulted in injury for which both have become liable in tort to a third person is entitled to indemnity from the other for expenditures properly made in the discharge of such liability, if the other knew of the peril and could have averted the harm at a time when the negligent tortfeasor could not have done so.'

As stated in Canfield v. Security-First Nat. Bank (1939) 13 Cal.2d 1, 4, 87 P.2d 830: '. . . The restatement . . . does not constitute a binding authority, but, considering the circumstances under which it has been drafted, and its purposes, in the absence of a contrary statute or decision in this state, it is entitled to great consideration as an argumentative authority.'

In order for section 97 to be applicable, the union must have known of the peril and have been able to avert the harm at a time when Standard could not have done so. If the peril was the attempt to move he truck through the picket line, it might be said that the union was aware of this peril and could have averted it by withdrawing; if so, however, Standard could also have averted it either by stopping the truck or by making no attempt to drive through the picket line. If the peril is seen as the specific danger of running over the decedent, the union could not possibly have averted the harm because it did not have control of the truck. Thus under either view, section 97 does not apply.

The appellants were not, as they claim, 'merely an instrument or tool which caused the physical result in a...