Williams v. Johnston

• Decision Date: 17 June 1968
• Docket Number: No. 9943,9943
• Citation: 92 Idaho 292,442 P.2d 178
• Parties: Richard C. WILLIAMS, Plaintiff, v. George JOHNSTON and Blanche Johnston, husband and wife, Defendants-Respondents, v. ZAMZOW'S, a corporation, dba Kuna Mills; and Liquefied Vangas, Inc., a corporation, Defendants-Appellants.
• Court: Idaho Supreme Court

Page 178

442 P.2d 178

92 Idaho 292

Richard C. WILLIAMS, Plaintiff, v. George JOHNSTON and Blanche Johnston, husband and wife, Defendants-Respondents, v. ZAMZOW'S, a corporation, dba Kuna Mills; and Liquefied Vangas, Inc., a corporation, Defendants-Appellants.

No. 9943.

Supreme Court of Idaho.

June 17, 1968.

Elam, Burke, Jeppesen & Evans, Moffatt, Thomas, Barrett & Blanton, Boise, for appellants.

C. Ben Martin, Boise, for respondents.

McFADDEN, Justice.

Richard C. Williams, the plaintiff, was involved in a motor vehicle accident on July 14, 1964, in which he suffered personal injuries and property damage for which he sought recovery in this action. Williams, in his complaint, alleged independent negligence on the part of each of the defendants, i. e., George and Blanche Johnston (respondents herein), Liquefied Vangas, Inc., and Zamzow's, Inc. (appellants herein).

The accident occurred when Williams was driving along a highway near Kuna, Idaho. As Williams' vehicle and the Johnston vehicle were passing each other, a weed-burning trailer-rig, being towed by the Johnston vehicle, broke loose from the trailer hitch and struck the Williams vehicle. In his complaint, Williams alleged negligence on the part of the Johnstons for failing to properly attach the weed-burning trailer-rig to their vehicle, failing to stop and make necessary repairs when the trailer hitch became loosened and for failing to maintain proper safety precautions while using the public road. Williams charged appellants Zamzow's and Liquefied Vangas, Inc., independently with negligence in renting out the weed-burning equipment which was not adequately equipped to remain hitched to Johnstons' vehicle, and in failing to give adequate instructions to the Johnstons as to its operation and attachments to towing vehicles. Zamzow's, Inc., had rented the trailer, which was owned by Liquefied Vangas, Inc., to the Johnstons.

The Johnstons tendered to both appellants a request for defense of Williams' action against them and cross-claimed against appellants for indemnity and judgment over when the request was refused.

Zamzow's and Liquefied Vangas, Inc., in turn, each tendered to the Johnstons a request for defense of the Williams' action against them individually, and each cross-claimed against the Johnstons for indemnity for costs and attorneys fees and judgment over when the requests were refused.

Negotiations for settlement were conducted by the various parties, but no agreement was reached prior to trial. Shortly after the trial commenced, appellants Zamzow's, Inc., and Liquefied Vangas, Inc., entered into an agreement with plaintiff Williams pursuant to which Williams, in consideration of the payment to him of $4,000 (which was paid $2,000 by each appellant), agreed not to execute against the appellants. Respondents and the court were advised of the settlement during the trial.

Trial of the case continued on the basis of plaintiff's complaint against all parties. Special interrogatories were submitted to the jury, which were returned. The jury's answers to the special interrogatories established that respondents were negligent as to plaintiff Williams and assessed damages against respondents in the sum of $9,000. Other interrogatories were returned by the jury wherein the jury found there was no negligence on the part of either appellant, Zamzow's, Inc., or Liquefied Vangas, Inc.

During the course of the trial respondents dismissed their cross-claim against appellants.

Judgment was later entered in favor of plaintiff Williams against respondents in the amount of $9,000. Respondents filed a motion to amend the judgment to reduce the amount of the judgment from $9,000 to $5,000, inasmuch as Williams had already received $4,000 by reason of the payments by appellants for the covenant not to execute. Motion for new trial was also filed by respondents. The trial court granted the motion to amend the judgment, and denied the motion for new trial. The judgment, as amended to $5,000, was subsequently satisfied by respondents' attorney.

Following amendment of the judgment and denial of the motion for new trial, appellants' respective cross-claims against respondents were still pending. Appellants each moved to amend their respective cross-claims seeking indemnification from respondents Johnston for the money each had paid to plaintiff Williams for the covenant not to execute. The appellants also moved for partial summary judgment on their respective cross-claims, leaving for future determination the issue as to the amount of attorneys' fees which they claimed respondents Johnston were obligated to pay.

The motions by appellants for summary judgment on their cross-claims were denied by the court, and the court entered summary judgment in favor of respondents Johnston. It is from this summary judgment in favor of the Johnstons that this appeal was perfected.

By their assignments of error, appellants assert that the trial court erred in entering summary judgment in favor of respondents, and in not entering summary judgment in their favor for amounts paid for the covenant not to execute, and for their attorneys' fees and reasonable costs incurred in defending against plaintiff Williams' complaint.

Appellants contend that under the theory of indemnity they are entitled to recover the sums paid for the covenant not to execute and their attorneys' fees and costs incurred in defending the action instituted against them by Williams. The substance of their argument is that the jury by its verdict found appellants to be blameless insofar as plaintiff's injuries and damages were concerned, and that only because of respondents Johnstons' negligence as found by the jury, was plaintiff injured; and because of Johnstons' negligence the accident occurred and appellants were brought into the lawsuit. They further contend that the expenses to which they were put and the payment made in securing the covenant not to execute were all made by reason of the compulsion of the pending lawsuit, and thus appellants are not to be considered as volunteers.

As to when a party is entitled to indemnity from another party for damages the indemnitee allegedly suffered or paid because of the act of the indemnitor, the courts have been faced with a multitude of different factual situations. The relationship of indemnitor-indemnitee in many instances arises out of specific indemnity contracts. In other situations the courts have dealt with the issues presented on the basis that the rights of a party to indemnification were founded on contract, either express or implied. See 42 C.J.S. Indemnity § 2 (1944); 27 Am.Jur. Indemnity § 16 (1940).

Various text writers and courts have recognized that the obligation to indemnify is not limited to the field of contract, express or implied, and have placed the obligation of one party to indemnify another on the principle that 'The theory of such right of indemnity is sometimes explained as being implied in law from the relationship of the parties.' Hodges, Contribution and Indemnity Among Tortfeasors, 26 Texas L.Rev. 150, 152 (1947); Davis, Indemnity Between Negligent Tortfeasors: A Proposed Rationale, 37 Iowa L.Rev. 517 (1952); Prosser, Torts § 46 at 249 (2d ed. 1955).

Indemnity cases dealing with tort situations and the obligation of one alleged tort-feasor to indemnify another party fall into somewhat well defined factual patterns based on recognized legal relationships. Such classification facilitates consideration of the principles upon which liability of an indemnitor to an indemnitee is founded. This is well pointed out in Prosser, Torts, wherein it is stated:

'Thus it is generally agreed that there may be indemnity in favor of one who is held responsible solely by imputation of law because of his relation to the actual wrongdoer, as where an employer is vicariously liable for the tort of a servant, or an independent contractor. Likewise where one is directed or employed by another to do an act not manifestly wrong, or is induced to act by the fraudulent representations of the other, he is generally held to be entitled to indemnity when a third party recovers against him. A similar rule has been implied to indemnity against a supplier of goods, or a contractor making improvements and repairs, when liability to a third person is incurred by reason of negligent reliance upon his proper care. Again, it is quite generally agreed that there may be indemnity in favor of one who was under only a secondary duty where another was primarily responsible, as where a municipal corporation, held liable for failure to keep is streets in safe condition, seeks recovery from the person who created the condition or a property owner who permitted it; or an owner of land held liable for injury received upon it sues the wrongdoer who created the hazard.

'There is in addition considerable authority that one whose negligence has consisted of mere passive neglect may have contribution from an active wrongdoer; or that one who has been merely negligent may obtain it from another who has been guilty of intentionally wrongful or reckless conduct, although there can be no indemnity in favor of the intentional tortfeasor himself. It has even been held that the doctrine of the last clear chance is to be applied to permit indemnity for the earlier liability against the later.

'It is difficult to state any general rule or principle as to when indemnity will be allowed and when it will not. It has been said that it is permitted only where the indemnitor has owed a duty of his own to the indemnitee; that it is based on a 'great difference' in the gravity of the fault of the two tortfeasors; or that it rests upon a disproportion or difference in character of the duties owed by the two to the injured plaintiff. Probably, as is so often the case in the law of torts, no one explanation can be found which will cover all the cases; and the duty to indemnify, like so...