Horn & Barker, Inc. v. MacCo Corp.

228 Cal. App. 2d 96, 39 Cal. Rptr. 320, 1964 Cal. App. LEXIS 1061

• Court: California Court of Appeal
• Decided: June 22, 1964
• Docket: Civ. 27695
• Status: Published

Opinions

HERNDON, Acting P. J.

Plaintiff appeals from the judgment entered following the sustaining of defendant’s demurrer without leave to amend. Plaintiff’s complaint attempts to state a cause of action based upon a theory of implied indemnity. A second count for money had and received is based upon the same transaction as that alleged in the first cause of action. The demurrer to the latter count was sustained in conformity with the familiar rule when it was determined that the actual and ultimate facts alleged by plaintiff in its first count did not constitute a cause of action. (Orloff v. Metropolitan Trust Co., 17 Cal.2d 484, 489 [110 P.2d 396].)

“The right to implied indemnity, while relatively recent in the law of California, is now well established. [Citations.] ” (Cahill Bros., Inc. v. Clementina Co., 208 Cal. App.2d 367, 375-376 [25 Cal.Rptr. 301], wherein numerous cited decisions are extensively analyzed both as to their facts and their legal theories.)

In support of its claim to indemnification, plaintiff’s complaint alleges that on September 23, 1958, defendant corporation was employed as a contractor on a certain construction project; that one Ira Carnahan was an employee of defendant and performed services on the construction project; that plaintiff owned and operated a business engaged in the leasing and rental of construction equipment and machinery; that on said date “plaintiff, for a consideration, leased and rented to defendant Macco a certain back-hoe machine and delivered it to the project, for the use of defendant Macco . . . [and] also furnished an operator for said machine, one Robert Kostka ... who accompanied said machine to the project. ’ ’

The complaint further alleges that Carnahan subsequently brought an action against plaintiff to recover damages resulting from injuries sustained by him arising from the operation of the leased machine. This action resulted in judgment against plaintiff in the sum of $103,000 which was subsequently satisfied by the payment to Carnahan of $67,500. In addition, plaintiff expended the sum of $2,920.68 for attorney fees and legal costs in connection with the defense of this action. The complaint specifically alleges:

“The liability of plaintiff to Carnahan for his injury and damage, as determined by the judgment in said action, resulted from no actual fault of, or misfeasance by, plaintiff, but arose only because of a responsibility imposed on plaintiff by law; as the alleged general employer of Kostka; for the negligent acts and omissions of Kostka during the time Kostka was operating said machine, as hereinbefore described.” (Italics added.)

In an attempt to establish its right to shift its liability for the conduct of its negligent employee to defendant, plaintiff’s complaint alleges as follows: “Concurrently with the delivery of said machine to the project, and the arrival thereon of Kostka, defendant Maceo assumed full and exclusive control and use of said machine and assumed full and exclusive supervision and direction of Kostka, in his operation of said machine. Thereafter, defendant Macco utilized said machine, and supervised and directed Kostka in his operation of said machine, in the performance of certain excavation work then and there being performed by defendant Macco as contractor on the project.

“On or about September 23, 1958, while performing said excavation work, and while using said machine and supervising and directing Kostka in his operation of said machine, defendant Maceo so recklessly, negligently and carelessly used said machine, and so recklessly, negligently and carelessly supervised and directed Kostka in his operation of said machine, as to cause bodily injury and damage to said Carnahan.

“During said time when said bodily injury and damage was caused to Carnahan, as hereinbefore described, plaintiff exercised no control, direction or supervision whatsoever over the activities of Kostka, and/or over the operation and use of said machine, and in fact had no right and no power to do so.”

It is apparent that by the above quoted allegations, and by the more extensive allegations made in the proposed amended complaint (which was attached to plaintiff’s notice of motion to reconsider the order sustaining the demurrer without leave to amend) plaintiff is seeking to relitigate the determinative issue which necessarily was decided adversely to it in the prior action described in its present complaint. That is, if the quoted “conclusions” or “ultimate facts” thus set forth in plaintiff’s complaint, or proposed amended complaint, were true, plaintiff would not have been liable to Carnahan in the original action since Kostka would have been in the special employ of defendant.

The rules governing this subject have been declared in the numerous decisions of the California courts which are cited and summarized in 32 California Jurisprudence 2d, Master and Servant, section 114, pages 546 to 550. No useful purpose would be served by their repetition here.

When it is reduced to its essential elements, the question as to which of two potential masters or employers shall be held responsible for the active negligence of a servant or employee is not a question which is answered by the law governing in the field of indemnity. Long prior to the development of presently effective theories of implied indemnity, the rules of agency determining the classifications of “general” and “special” employment had been achieving essentially the same results without following the circuitous route to the determination of liability inherent in modern implied indemnity cases. If, in an appropriate factual situation, the responsibility for the acts of a workman and the liability resulting from application of the doctrine of respondeat superior justly should be imposed upon the special employer it is placed there immediately. That is to say, the special employer is held liable and the general employer not liable.

Of course, this result would be inevitable in any event, because, as noted in Alisal Sanitary Dist. v. Kennedy, 180 Cal.App.2d 69, 75 [4 Cal.Rptr. 379]: “ ‘The right of indemnity rests upon a difference between the primary and secondary liability of two persons each of whom is made responsible by the law to an injured party. It is a right which enures to a person who, without active fault on his part, has been compelled by reason of some legal obligation, to pay damages occasioned by the initial negligence of another, and for which he himself is only secondarily liable. The difference between primary and secondary liability is not based on a difference in degrees of negligence or on any doctrine of comparative negligence—a doctrine which, indeed, is not recognized by the common law; ... It depends on a difference in the character or hind of the wrongs which cause the injury and in the nature of the legal obligation owed by each of the wrongdoers to the injured person. ...’” (Italics supplied by the court.) (See also Cahill Bros., Inc. v. Clementina Co., supra, 208 Cal.App.2d 367, 378-379; American Can Co. v. City & County of San Francisco, 202 Cal.App.2d 520, 525 [21 Cal.Rptr. 33].)

In the instance of a dispute between a general and special employer as to which should be held liable for the negligence of a workman, there is only one character or hind of wrong in issue, i.e., the imputed liability resulting from the application of the doctrine of respondeat superior. Therefore, the problem of primary and secondary liability does not arise.

We need not here consider the effect of the doctrine of res judicata as applied in rulings upon demurrers (Flores v. Arroyo, 56 Cal.2d 492, 496-497 [15 Cal.Rptr. 87, 364 P.2d 263]; ef. also Teitelbaum Furs, Inc. v. Dominion Ins. Co., Ltd., 58 Cal.2d 601, 604-606 [25 Cal.Rptr. 559, 375 P.2d 439]; Bernhard v. Bank of America, 19 Cal.2d 807, 810-811 [122 P.2d 892]). This is true because plaintiff’s pleading itself affirmatively established that previously it had been judicially determined that it, as “general employer,” was bound to bear the responsibility “for the negligent acts and omissions of [the challenged employee] Kostka during the time Kostka was operating [its] machine.” To the extent that it seeks by its present pleading to relitigate this issue and to shift the identical imputed liability to the defendant, as special employer, it must necessarily fail.

From the present record we cannot, and need not, determine whether or not plaintiff brought the present defendant into the prior action wherein it is alleged that its liability for the acts of its employee was judicially determined. Even apart from the resolution of the general versus special employer question, plaintiff could have joined the defendant therein either to establish that defendant was a joint tortfeasor (Vegetable Oil Products Co. v. Superior Court, 213 Cal.App.2d 252, 256 [28 Cal.Rptr. 555]; City of Sacramento v. Superior Court, 205 Cal.App.2d 398, 403 [23 Cal.Rptr. 43]), or to determine whether or not a cause of action for indemnity existed between them (Vegetable Oil Products Co. v. Superior Court, supra, at p. 257; Roylance v. Doelger, 57 Cal.2d 255, 258-262 [19 Cal.Rptr. 7, 368 P.2d 535]), without awaiting a determination of its own liability or the amount of the damages resulting thereunder.

However, we have already disposed of appellant’s mistaken contention that the “right of implied indemnity” may be used as a vehicle for the subsequent transfer of the liability imputed to the general employer under the doctrine of respondeat superior over to the special employer in a second action. In its reply brief, appellant actually concedes this point, but then proceeds to argue that, although it is responsible for the active negligence of its employee, Kostka, nevertheless, since this liability results from the application of the respondeat superior doctrine, it is of a lesser or secondary or more passive character than the negligence of respondent.¹ Thus, it is asserted:

“... The respondent argues that since the appellant was held liable as the general employer of the operator on the theory of respondeat superior that it is barred from showing that Maceo was the primary tortfeasor because the issue of general employment vs. special employment has been decided in the suit by Carnahan against it.

“However, appellant is not alleging that Macco is primarily liable because it directed the operator Kostka, where to go and what to do, but that Macco in breach of its duty to appellant used the machine and operator in an unsafe and dangerous manner under dangerous and hazardous conditions created in violation of applicable Safety Orders and created the hazard of injury by directing one of their workmen, the said Carnahan, to work at the bottom of the excavation under such conditions while the machine was in operation. This was not an issue in . . . [Carnahan’s prior action against appellant].” (Italics added.)

It subsequently reframes the same contention as follows:

‘ ‘ In the instant case, the facts alleged show the creation of dangerous and hazardous conditions and plan of operation by Macco and the use of appellant’s operated machine under these dangerous and hazardous conditions in a manner for which it was not intended by using it to excavate beyond its depth for safe operation; and creating extreme hazard to its own employee by directing him to work at the bottom of the hole while the machine was in operation. This is a situation in which respondent Macco was the one primarily responsible and appellant by reason of the doctrine of respondeat superior bore the brunt of the consequences. Thus as a matter of equitable adjustment the liability should be shifted to respondent Macco. ’ ’

It may be conceded readily that the possibility that plaintiff and defendant might have been joint tortfeasors (whose negligence concurrently produced the accident resulting in injuries to Carnahan) was not precluded by the judgment in Carnahan’s prior action against the plaintiff. But such possibility would be equally fatal to plaintiff’s right to seek indemnification under the facts here alleged. Once it was established that plaintiff was responsible for the active negligence of its employee Kostka which was at least one of the proximate causes of the accident, the right to indemnity was foreclosed. This is true, even though the negligence imputed to respondent by reason of the actions of its employees might also have been a proximate cause of the accident, and, in comparison with Kostka’s negligence, might have been of a more serious degree. As stated in Cahill Bros., Inc. v. Clementina Co., supra, 208 Cal.App.2d 367, 381:

“In attempting to set a standard by which to guide the trier of fact in determining what conduct would preclude recovery for indemnity, the San Francisco Unified Sch. Dist. ease [S. F. Unified Sch. Dist. v. Cal. Bldg. etc. Co., 162 Cal. App.2d 434 (328 P.2d 785)] reduced the factual determination to the ascertainment as to ‘whether the conduct . . . helped to bring about the damage’ to the injured person. (P. 449; emphasis added.) In the instant case, the trial court adopted this language when it instructed the jury that Cahill [the corporate plaintiff seeking indemnity] could not recover if its conduct ‘helped bring about the damage complained of by William Hull. ...’ Webster defines the verb ‘help’ to mean ‘ [t]o aid; assist.’ Among its synonyms -are: strengthen, support, sustain, and further. To help implies cooperation or a combination of effort. (Webster’s Dictionary of Synonyms.) The crux of the inquiry is participation in some manner by the person seelcing indemnity in the conduct or omission which caused the injury beyond the mere failure to perform the duty imposed upon him by law. [Citations.] ” (Italics added.)

In American Can Co. v. City & County of San Francisco, 202 Cal.App.2d 520 [21 Cal.Rptr. 33], a plaintiff also sought to apply the theory of implied indemnity to recover for the damages sought against it as the result of the imputed negligence of its employee, a bus driver, that had contributed to the injury of certain of the defendant’s employees. The trial court granted the defendant’s motion to strike the complaint. This order was affirmed upon appeal, the court stating as follows at page 526:

“Appellants’ complaint does not allege that respondent owed a different kind of obligation to the injured employees or that respondent’s breach of duty was of a different nature than appellants’. The complaint, when viewed most favorably, merely asserts that respondent’s tower truck was improperly parked; that respondent’s buses were located so as to conceal the truck from view; and that respondent failed to provide a flagman or barricades to direct traffic around the truck. Even if it can be assumed that these omissions on respondent’s part were far more negligent than appellant driver’s act of proceeding into an intersection despite the fact that his view was impaired by a trolley bus, there is a complete absence of any facts showing that respondent’s duty to the injured employees was any greater than appellants’, or that there was any special relationship between respondent and appellants which would give rise to a duty of indemnity. On the contrary, the facts alleged in the complaint merely reveal that the concurring negligence of the two parties resulted in certain injuries to Murphy and Jones. Appellants’ complaint thus falls squarely within the common-law rule against contribution or indemnity between joint tortfeasors.”

Similarly, in Cahill Bros., Inc. v. Clementina Co., supra, 208 Cal.App.2d 367, Cahill, the corporate plaintiff, sought and was granted recovery under the theory of implied indemnity for the damages it had been forced to pay as the result of the negligence of its employee Larkin. In reversing this judgment, the court stated at page 382:

“The evidence in this case unerringly points to participation on the part of Cahill which went beyond nonaction and the mere failure to perform the duty to Hull [the injured party] which the law imposed on Cahill, i.e., the failure to act in fulfillment of the duty of care which devolved upon it as a general contractor. The actions and knowledge of Larkin in the course and scope of his employment for Cahill are imputed to the latter. ... Under the state of the facts we are impelled to find that as a matter of law Cahill partook consciously and actively in the wrong to Hull. This is the only reasonable hypothesis that can be drawn from the evidence and the uneontradicted facts and the only conclusion which reasonable men could draw. Accordingly, the question as to whether Cahill actively participated in the affirmative act of negligence which caused the injury to Hull should not have been submitted to the jury. [Citations.] ” (Italics added.)

In the instant case, plaintiff’s pleading affirmatively alleges that negligent actions of its employee Kostka have been judicially imputed to it as the general employer. This conclusion appears to be in accord with the following rule declared in section 227 of the Restatement of Agency and quoted with approval in Lowell v. Harris, 24 Cal.App.2d 70, 78 [74 P.2d 551] :

“ 'A continuance of the general employment is also indicated in the operation of a machine where the general employer rents the machine and a servant to operate it, particularly if the instrumentality is of considerable value. Normally, the general employer expects the employee to protect his interests in the use of the instrumentality and these may be divergent from the interests of the temporary employer. If the servant is expected only to give results called for by the temporary employer and to use the instrumentality as the servant would expect his general employer would desire, the original service continues. Upon this question, the fact that the general employer is in the business of renting machines and men is relevant, since in such case there is more likely to be intent to retain control over the instrumentality. ’ ’ ’

In the instant case both plaintiff and defendant are corporations, and, therefore, in a literal sense can never be guilty of “actual” negligence, active or passive, except to the extent that the acts of their agents, servants and employees are imputable and chargeable to them. Plaintiff’s complaint reveals that it was “present” upon the scene when Carnahan was injured through the presence of its employee, Kostka, whom it had selected to protect its interests in the operation of its machine. Kostka, as plaintiff’s representative, presumably knew more about the operation of the leased machine than defendant’s employees, and if he was not in the special employ of the defendant, he certainly was under no duty to carry out instructions that would cause the machine to be operated in an unsafe manner or place.

Contrary to appellant’s contentions, the character of the negligence of an employee which is imputed to his employer is not transmuted by the exercise of the imputative process. Imputed liability is not the equivalent of liability arising from passive negligence. If such were the rule, then all liability arising under the doctrine of respond-eat superior would become the basis for an action for indemnification, because the active negligence of the employee, with which the employer is chargeable, would automatically be converted into the passive negligence of the latter by the mere application of the doctrine.

Since plaintiff’s complaint affirmatively alleges that it has been judicially determined that the liability for which it seeks indemnification resulted from the “negligent acts and omissions of [its employee] Kostka during the time Kostka was operating [its] machine, . . .” it must be held as a matter of law that it participated “in the conduct or omission which caused the injury beyond the mere failure to perform the duty imposed upon [it] by law.” (Cahill Bros., Inc. v. Clementina Co., supra, at p. 381.)

The judgment is affirmed.

Roth, J., concurred.

1 It may be noted, of course, that this contention ignores the fact that the negligence, if any, of the respondent, a corporation, also is derived from the acts of its employees that are imputed to it.