Vegetable Oil Products Co. v. Superior Court for Los Angeles County

• Decision Date: 20 February 1963
• Court: California Court of Appeals Court of Appeals
• Parties: VEGETABLE OIL PRODUCTS COMPANY, Inc., Petitioner, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent; Elmer L. FERREL, Real Party in Interest. Civ. 26841.

Page 555

28 Cal.Rptr. 555

213 Cal.App.2d 252

VEGETABLE OIL PRODUCTS COMPANY, Inc., Petitioner, v. The SUPERIOR COURT of the State of California, FOR the COUNTY OF LOS ANGELES, Respondent Elmer L. FERREL, Real Party in Interest.

Civ. 26841.

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

Feb. 20, 1963.

Schell & Delamer and Lee A. Solomon, Los Angeles, for petitioner.

Harold W. Kennedy, County Counsel, Los Angeles, and Donald K. Byrne and John J. Collins, Deputy County Counsel, for respondent.

Edgar Simon, Beverly Hills, for real party in interest.

FILES, Justice.

This case, like Tate v. Superior Court, Cal.App., 28 Cal.Rptr. 548, involves an attempt by a defendant in a personal injury action to base a defense and a cross-complaint upon the allegation that the plaintiff's employer negligently caused the injury.

The facts, as alleged in the petition filed here, are admitted by the return. On June 9, 1958, Elmer L. Ferrel commenced an action in the respondent superior court to recover damages for bodily injuries. At the time of his injury, Ferrel was employed by Bay View Welding Works to make repairs on a large metal storage tank owned by Vegetable Oil Products Company, Inc. Ferrel's original complaint for damages named as defendants Safway Steel Scaffolds, Vegetable Oil Products Company, Inc., and Bay View Welding Works. A general demurrer interposed by Bay View was sustained on August 1, 1958, and Ferrel thereafter filed an amended complaint omitting that party. The action was tried and judgment entered for defendants. On appeal, the Supreme Court reversed and remanded for a new trial against the defendant Vegetable Oil only. (Ferrel v. Safway Steel Scaffolds, 57 Cal.2d 651, 21 Cal.Rptr. 575, 371 P.2d 311.) The evidence, as described in the Supreme Court's opinion, showed that the accident occurred while Ferrel was inside the tank standing on a scaffold attempting to straighten out a buckle in the side of the tank, using a hydraulic jack. When the jack was retracted the buckle sprang in again, throwing Ferrel to the ground. There was evidence that the method adopted by Bay View was not standard practice, and that attempting to repair the tank in this manner is unusually dangerous to workmen. The court held that Vegetable Oil could be held liable to the injured workman under the theory that it was aware of the danger created by Bay View's conduct but had failed to take precautions of its own to prevent the accident.

The remittitur was filed in the superior court on June 18, 1962. On July 6, 1962, Vegetable Oil filed a motion for leave to amend its answer to allege an additional affirmative defense as follows: that at the time of Ferrel's injury he was acting in the course and scope of his employment as an employee of Bay View; that Bay View had procured Workmen's Compensation insurance with Casualty Insurance Company; that said compensation carrier had paid benefits to Ferrel and claims a lien on any recovery by Ferrel; that Ferrel's injury was caused by the negligence of Bay View, and that Bay View and its compensation carrier are therefore barred from recovery of anything.

The motion further asked leave to file a cross-complaint and join Bay View and Casualty Insurance Company as cross-defendants.

On October 3, 1962, the court made an order denying this motion in all respects. The order further provided that 'If it should be determined in any appellate proceeding' that the cross-complaint be filed and the new parties joined, 'then this Court under C.C.P. sec. 1048 orders all proceedings upon said cross-complaint be severed, for separate trial.'

Vegetable Oil then petitioned this court for a writ of mandamus to compel the granting of its motion.

The opinion filed this day in Tate v. Superior Court, Cal.App., 28 Cal.Rptr. 548, explains the view of this court that petitioner is entitled to plead the contributory negligence of the employer and that mandamus should issue to enforce that right. The timeliness of petitioner's motion cannot be questioned, coming within three weeks after the remittitur. No showing of merits need be made beyond a reference to the opinion of the Supreme Court, which describes the evidence from which the negligence of the employer, Bay View, could be inferred.

Respondent makes the additional argument here that the dismissal of Bay View after the demurrer was sustained to the original complaint constitutes an adjudication that Bay View was not at fault. The allegations of the original complaint have not been made a part of the record here, but nothing before this court now would indicate that there was any such adjudication. The most obvious probable reason for the dismissal of Bay View is that the complaint showed that Bay View was plaintiff's employer, and Labor Code, section 3601, bars any such action against the employer by an employee who is entitled to the benefits of the compensation act. A judgment in an action in which the parties were not adversaries, but only joined as codefendants, is not res judicata as between them. (Atherley v. MacDonald, Young & Nelson, Inc., 135 Cal.App.2d 383, 385, 287 P.2d 529.) There is nothing before this court to indicate that any adverse claim as between Bay View and Vegetable Oil was raised before Bay View was dismissed as a defendant in 1958. The joinder and dismissal of Bay View in 1958 thereore is without consequence now.

The cross-complaint proposed by Vegetable Oil involves issues not raised in the Tate proceeding. It is in two separate causes of action. One is for declaratory relief against Bay View's compensation carrier, Casualty Insurance Company, asking a declaration that the carrier is not entitled to recover back any benefits paid to Ferrel, and that Ferrel's recovery, if any, against Vegetable Oil must be reduced by the amount of the compensation benefits. This is the type of cross-complaint which was held to be proper in City of Sacramento v. Superior Court, 205 A.C.A. 455, 23 Cal.Rptr. 43. As indicated in the Tate opinion, such a cross-complaint is not necessary where the issue is properly raised by answer. At worst, this part of the cross-complaint is surplusage and is not ground for rejecting the entire pleading.

The other cause of action of the proposed cross-complaint is directed against Bay View. Therein Vegetable Oil, as cross-complainant, alleges that when it engaged Bay View to repair the storage tank, the latter agreed to perform the work in a careful and prudent manner; that Bay View had the exclusive control and supervision over the work; that Ferrel's accident was caused by Bay View's negligence; and that Bay View has an implied duty to indemnify Vegetable Oil against any claim for damage or expense resulting from Bay View's failure to provide for the safety of the workmen. The prayer is for a declaration that Bay View is obligated to pay any judgment, costs, attorney's fees and expenses incurred by Vegetable Oil in the action brought against it by Ferrel.

The allegations state a cause of action for indemnification under the principles discussed in San Francisco Unified School District v. California Bldg., etc., Co., 162 Cal.App.2d 434, 328 P.2d 785, Montgomery Ward & Co. v. KPIX Westinghouse Broadcasting Co., 198 Cal.App.2d 759, 18 Cal.Rptr. 341, and Cahill Bros., Inc. v. Clementina Co., 208 A.C.A. 405, 25 Cal.Rptr. 250. A cross-complaint for declaratory relief is an appropriate way of having this right to indemnity determined. (Roylance v. Doelger, 57 Cal.2d 255, 19 Cal.Rptr. 7, 368 P.2d 535.)

Although the cross-complainant's cause of action grows out of events which occurred and rights which were fixed on the date of the accident (June 11, 1957), the cross-complaint is not barred by any statute of limitations.

De La Forest v. Yandle, 171 Cal.App.2d 59, 340 P.2d 52, was an action for indemnification brought by a party who had been required to pay damages because of a defective condition against the party who had...