Transcon Lines v. Barnes

• Decision Date: 22 June 1972
• Docket Number: No. 1,CA-CIV,1
• Citation: 498 P.2d 502,17 Ariz.App. 428
• Parties: TRANSCON LINES, a corporation, and Oris Clayton Reed, Appellants, v. Harry Albert BARNES, Appellee. 1295.
• Court: Arizona Court of Appeals

Page 502

498 P.2d 502

17 Ariz.App. 428

TRANSCON LINES, a corporation, and Oris Clayton Reed, Appellants, v. Harry Albert BARNES, Appellee.

No. 1 CA-CIV 1295.

Court of Appeals of Arizona, Division 1, Department B.

June 22, 1972.

Rehearing Denied July 24, 1972.

Review Denied Sept. 26, 1972.

Snell & Wilmer by H. William Fox and James A. Honer, Phoenix, and Toff, Gordon & Royce by Melville A. Toff, Mountain View, Cal., for appellants.

O'Connor, Cavanagh, Anderson, Westover, Killingsworth & Beshears by John H. Westover, Phoenix, for appellee.

HAIRE, Chief Judge, Division 1.

On this appeal we are required to consider the question of whether a tortfeasor who initially causes serious injuries is entitled to indemnity from a negligent doctor when death subsequently results.

This is an appeal by Transcon Lines and Oris Clayton Reed, defendants below, from a judgment denying their cross-claim for indemnity.

Plaintiffs, in the action below, instituted a wrongful death action which arose out of the following sequence of events. On or about February 27, 1966, Rose Bates decedent, suffered injuries as a result of a collision of a vehicle in which she was a passenger and a Transcon Lines truck driven by Oris Clayton Reed. Mrs. Bates was taken from the scene of the accident to the Williams Hospital where, suffering severe back and neck injuries and some paralysis, she was placed under the care of Harry Barnes, M.D.

Some 49 days later, on April 15, 1966, Mrs. Bates was taken to the Williams Airport and placed on an airplane for transportation to her home in Oakland, California, where, in Dr. Barnes' opinion, she might make better recovery during the anticipated lengthy convalescent period. During the flight, approximately two hours after take-off, she suddenly expired. The cause of death, according to an autopsy performed on her, was bronchopneumonia.

The above sequence of events led to the filing of a wrongful death action against Transcon, Oris Clayton Reed, Dr. Barnes and the hospital and medical attendants that treated and cared for Mrs. Bates during her hospital stay. Appellants Transcon and Oris Clayton Reed (hereafter 'Transcon' or 'appellants') filed a cross-claim for indemnity against all other defendants. Prior to trial appellants stipulated to their negligence in causing the auto accident, but they expressly stated that they were not stipulating to any liability for Mrs. Bates' death.

Later in the proceeding the trial court ruled that Transcon was responsible as a matter of law for any negligent treatment rendered by Dr. Barnes or the other medical defendants.

While the issue of appellants' liability for the wrongful death consequences was repeatedly raised in the trial court, the court did not deviate from its ruling that appellants were liable, as a matter of law, for any damages caused by defendant Barnes Et al., and appellants have not raised this issue as error in the present appeal. Rather, they challenge the judgment of the court denying the crossclaim for indemnity.

After the court's ruling as to the liability of Transcon for the negligence of Barnes Et al., the trial proceeded as to proof of medical malpractice and proof of wrongful death damages. Thereafter the jury returned a verdict in the amount of $125,000 in favor of plaintiffs and against Dr. Barnes, Transcon Lines and Reed. Several months later the trial judge signed a judgment dismissing appellants' crossclaim for indemnity. The relevant portion of that judgment reads as follows:

'The Court proceeded to hear the evidence on behalf of the Defendants Transcon Lines and Oris Clayton Reed upon their crossclaim and having heard the same determined That there was no issue to be submitted to the jury upon the Crossclaim.

IT IS THEREFORE ORDERED, ADJUDGED AND DECREED that the Crossclaim of the Defendants Transcon Lines and Oris Clayton Reed against the Defendants Harry Albert Barnes, Lenore Reed, Edward L. Ely and Williams Hospital be and the same is Hereby dismissed and the Crossclaimants Transcon Lines and Oris Clayton Reed take nothing by way thereof.' (Emphasis added).

Appellants' notice of appeal indicates that they appeal from this judgment only. Their claim for indemnity is grounded in a two-step argument. First, they claim that the liability imposed on them for Dr. Barnes' negligence and the ensuing death of Mrs. Bates arose out of a positive rule of law requiring that result, and not upon a finding that their negligence actually caused Mrs. Bates' death. Second, they claim that such a large difference of negligence exists here that under Arizona law they can only be regarded as 'passive' or 'secondary' tortfeasors, and thus they are entitled to indemnity against Dr. Barnes, the 'active' or 'primary' tortfeasor. In the same vein appellants point out that this was an action for wrongful death only; therefore, they argue, all the damages awarded by the jury were damages which were caused by the malpractice of Dr. Barnes, and were fixed on them only by reason of the imputed liability required by the Restatement of Torts. ¹

Alternatively appellants urge that the equitable nature of indemnity requires restitution in this case, because they had no part in the selection of the doctors or hospital, no control over the direction or conduct of the hospital, nothing to do with the treatment and/or care of the decedent and nothing to do with the decision to transfer the decedent from the hospital to Oakland, California. In short, they argue that they had no opportunity to protect themselves against the negligence of Dr. Barnes, and thus that they are entitled to indemnity. In support of this position they cite a California case, Herrero v. Atkinson, 227 Cal.App.2d 69, 38 Cal.Rptr. 490 (1964), which allowed indemnity under similar circumstances.

Appellee argues that the 'active-passive' 'primary-secondary' rationale is inapplicable here, because it evolves from a case totally different on its facts, and because appellants here were negligent tortfeasors. Appellee therefore concludes that the Restatement of Restitution ² governs this case, and that the Restatement allows indemnity between successively negligent tortfeasors, apart from certain specific situations described, only where the first actor is ordinarily negligent and the second actor is wantonly negligent.

The leading case on indemnity in Arizona, and the case from which appellants derive their 'primary-secondary', 'passive-active' theory, is Busy Bee Buffet, Inc. v. Ferrell, 82 Ariz. 192, 310 P.2d 817 (1957). In that case plaintiff Ferrell was making a beer delivery to premises owned by defendant Buffet. He fell through a trap door left open by defendant Pastis, a co-tenant of the building. Plaintiff received a judgment against both defendants, and the Buffet received an indemnifying judgment over against co-defendant Pastis. On appeal, the Arizona Supreme Court recognized that the Buffet had breached its duties to maintain the premises in a reasonably safe condition and to warn invitees of the danger of its trap door. Nevertheless the court found Pastis 'primarily liable' and the Buffet only 'secondarily liable' and sustained the indemnity judgment awarded to the Buffet against Pastis.

In arguing that a finding of liability imputed by law is a basis for allowing indemnity if other requirements are met, appellants in this case point to the following language in Busy Bee, taken from Fidelity & Casualty Co. of New York v. Federal Express, 136 F.2d 35, 41 (6th Cir. 1943):

'. . . as between joint tort-feasors, the issue of primary and secondary liability only arises: . . . Where one is liable by construction of law or on account of some omission of a duty of protection or care; and where one tort-feasor is liable to the third party by reason of a legal relationship to the other tort-feasor, Or because of a condition brought about by the latter, in the creation of which the other has not joined.' 82 Ariz. at 198, 310 P.2d at 821. (Emphasis added).

The dictum of Busy Bee notwithstanding, the holding of that case as to liability clearly was grounded on the last mentioned principle. Said the court:

'The liability of the Buffet is based upon its positive legal duty to Ferrell to maintain the passageway in a reasonably safe condition for his use. It did not actively participate in the wrong which was the immediate cause of the injury to Ferrell. It was Pastis, a cotenant with the Buffet, who, acting Independently and without the knowledge of the Buffet, primarily caused the injury to Ferrell. It was his act in opening the trap door to the basement and leaving it unguarded which rendered the passageway unsafe for the use of Ferrell. His act did more than render it unsafe it rendered it highly dangerous. It constituted gross and wilful negligence for which he was liable to Ferrell either as an invitee or a licensee.' 82 Ariz. at 198, 310 P.2d at 821. (Emphasis added).

With regard to appellants' argument that they qualify as 'passive' or secondarily liable tortfeasors, in that they did not participate in the acts which caused Mrs. Bates' death, the following language in Busy Bee, comparing the negligence of the Buffet and Pastis is relevant:

'The Buffet was guilty of no active fault in creating the danger to Ferrell. Its negligence was passive or static. Its negligence was incapable of producing injury to any one at that time except though the active negligence of another. Pastis, in opening the trap door and leaving it unguarded, was the immediate cause of Ferrell falling through the opening and sustaining the injuries which form the basis of this litigation.' 82 Ariz. at 197, 310 P.2d at 820--821.

We are not convinced that these statements in Busy Bee are applicable to the case at hand. The 'primary-secondary', 'active-passive' language used therein is largely conclusory, and has been the source of much criticism by legal writers. See Davis, Indemnity Between Negligent...