Westinghouse Elec. Corp. v. J. C. Penney Co.

• Citation: 166 So.2d 211
• Decision Date: 11 June 1964
• Docket Number: No. E-355,E-355
• Parties: WESTINGHOUSE ELECTRIC CORPORATION, a corporation, Appellant, v. J. C. PENNEY COMPANY, Inc., a corporation, Appellee.
• Court: Court of Appeal of Florida (US)

Page 211

166 So.2d 211

WESTINGHOUSE ELECTRIC CORPORATION, a corporation, Appellant, v. J. C. PENNEY COMPANY, Inc., a corporation, Appellee.

No. E-355.

District Court of Appeal of Florida, First District.

June 11, 1964.

Rehearing Denied Aug. 5, 1964.

Mathews, Osborne & Ehrlich, Jacksonville, for appellant.

Marks, Gray, Yates, Conroy & Gibbs, Jacksonville, for appellee.

RAWLS, Judge.

Appellant Westinghouse Corporation entered into a contract on April 20, 1955 with appellee J. C. Penney Company, Inc., Jacksonville, Florida, wherein Westinghouse agreed to maintain Penney's elevator equipment and electric stairways (escalators) located in a building occupied by Penney in Jacksonville, Florida. Salient provisions of the said contract were:

'The Company [Westinghouse] will regularly and systematically examine, adjust, clean, lubricate, furnish lubricants, and when conditions warrant, repair or replace: MACHINE, MOTOR, GENERATOR AND CONTROLLER PARTS, including: Worms, Gears, Thrusts, Bearings, Brake Magnet Coils, Brake Shoes, Brushes, Windings, Commutators, Rotating Elements, Coils, Contacts, Resistors, Magnet Frames, and other mechancial parts.

'The Company will keep the Guide Rails properly lubricated at all times except where roller guides are used, and when necessary, renew guideshoe gibs or guide rollers in order to assure smooth and quiet operation.

* * *

* * *

'It is understood, in consideration of our performance of the service enumerated herein at the price stated, that nothing in this agreement shall be construed to mean that the Company assumes any liability on account of accidents to persons or property except those directly due to negligent acts of the Company or its employees, and that the Purchaser's own responsibility for accidents to persons or properties while riding on or being on or about the aforesaid equipment referred to, is in no way affected by this agreement. * * *' [Emphasis supplied.]

While said contract was in full force and effect, Mrs. Frieda Solomon, a business invitee, fell and injured herself on an escalator in Penney's store. Mrs. Solomon brought suit against Penney alleging negligent maintenance of the escalator causing the same to jerk as the proximate cause of her injruries. Penney immediately informed Westinghouse of the action, demanded that it defend same, and after Westinghouse refused to accept the defense of the suit, Penney defended it but kept Westinghouse informed of the proceedings at all times. During the trial of this suit Mrs. Solomon and her grandson testified that the escalator 'jerked' and as a result of the jerking she suffered the accident. Mrs. Solomon recovered a verdict and judgment in the sum of $500.00 against Penney. Thus Mrs. Solomon's judgment was recovered upon the theory of injury caused by the negligent maintenance of Penney's escalator. Penney advised Westinghouse of the outcome and suggested that Westinghouse prosecute an appeal which was not done.

We now reach the subject matter of the instant appeal. Penney sued Westinghouse seeking reimbursement as a result of the Solomon suit and upon motion and proofs recovered a summary final judgment against Westinghouse from which Westinghouse now appeals. Appellant urges that the trial court erred in granting summary judgment for Penney and assert the following material points on this appeal, viz:

1. There is no right of indemnity between joint tort-feasors when both are primarily liable.

2. There is no right of indemnity in the absence of primary fault.

3. The judgment is not conclusive on Westinghouse.

We do not agree with appellant's premise as stated in Point 1 which assumes that both of the instant parties are primarily liable. From an examination of the record, we find no theory or proof of any active negligence on the part of Penney to Mrs. Solomon, its liability being based upon ownership of the escalator. The able trial judge in his summary judgment correctly determined said point when he stated:

'The record of the proceedings in the Solomon case shows that the case was tried upon the theory of negligent maintenance as charged in the complaint. The verdict awarding damages to the plaintiff, and the judgment based on the verdict, was a judicial determination that the escalator was negligently maintained. Since the defendant, Westinghouse, had notice of the pendency of the suit and was afforded an opportunity to defend, this judgment is conclusive of that issue as to Westinghouse. 27 American Jurisprudence 478, Indemnity, Section 35.' [Ephasis supplied.]

Appellant's Point 2 fails upon the same fallacious premise as did that taken in Point 1 in that it assumes that no primary fault on its part was proven. Having determined, as did the trial court, that the jury in the Solomon trial settled this matter adversely to the contentions of appellant, we now examine the general law of indemnity applicable to joint tort-feasors.

The general rule recognized in this jurisdiction upholds the common law which denies contribution among joint tort-feasors. Like other common law doctrines many exceptions have been engrafted by the authorities upon the initial rule. Judge Wigginton speaking for this Court in Winn-Dixie v. Fellows ¹ spotlighted the applicable exception to the general rule and quoted the following which he termed one of its 'clearest explanations':

"One of these exceptions or limitations rests solely upon a difference between the kinds of negligence of two tort-feasors, and comes into play when the active negligence of one tort-feasor and the passive negligence of another tort-feasor combine and proimately cause an injury to a third person. * * * In such case, the passively negligent tort-feasor, who is compelled to pay damages to the injured person on account of the injury, is entitled to indemnity from the actively negligent tort-feasor. * * *"

This jurisdiction recognized a common law right of indemnity arising out of the contractual relationship of parties in the decisions of Seaboard Air Line Railway Company v. American District Electric Protective Company, ² and Suwannee Valley Electric Co-operative v. Live Oak, Perry & Gulf Railroad Company. ³ In the Seaboard case an employee was injured by a sagging wire comprising part of the signal system which American District Electric Protective Company owned, operated and maintained on Seaboard's premises pursuant to a contract with Seaboard. The employee recovered against Seaboard which sought indemnification in a complaint against American. The Supreme Court in holding that Seaboard's complaint stated a cause of action for indemnity said:

'* * * [W]here although both parties are at fault and both liable to the person injured, such as an employee of one of them, yet they are not in pari delicto as to each other, as where the injury has resulted from a violation of the duty which one owes the other, so that as between themselves, the act or...