*1 Oсt. 1958.] In Bank. 19977. F. No. [S. Appellant, FRANCISCO, OF SAN AND COUNTY
CITY Respondents. al., et SING HO *2 Holm, City Dion R. Attorney, George and Baglin, E. Deputy City Appellant. Attorney, Bronson, & Bronson McKinnon Frank and E. Farr ella Respondents. CARTER, appeal by county This isan J. and of municipal San Francisco, corporation, a judgment from a defendants’, Sing after Shee, Ho Lum and Ho demurrer to complaint had been sustained without leave to amend. purchased building Mr. and Ho in Mrs. San Francisco. predecessors Their in skylight title had installed sidewalk building. front skylight This was over a basement During which was maintained Ho. the course defendants sky- possession building, of defendants’ the sidewalk light long. developed а crack two wide and inches inches August tripped said 24,1952, Wagner On one of Mrs. because breaking hip. Wagner fell, crack her and and Mr. Mrs. sued county and Francisco and Mr. San City (Wagner damages resulting Mrs. Ho for therefrom County al., 423562) Francisco et & No. recovered San Ho against plaintiff and defendants judgment a final Plaintiff plus and costs. $15,000 interest in a amount of total plus $5,000 costs. $102.03 city paid Wagner the sum Mrs. $10,000. paid Wagner the sum Mrs. Defendants compel Plaintiff, bringing action, this seeks defendants indemnify $5,258.87 plus ($5,000 sum of it in the costs and %). at trial noted, interest As heretofore court sustained plaintiff’s complaint defendants’ demurrеr to without leave to amend. only question impression is one involved of first may this property adjoining state and stated as Where an follows: owner for the exclusive of his benefit own
places public ain or sidewalk artificial street some structure compensation compelled pay injured may thereby member of the recover paid by way the amount so indemnity? specifically question open This left Peters v. & County Francisco, San 41 Cal.2d problem presented where we said: “We are with the city might Duques whether in have a over pays jury event returns *3 against a property trial, on new and verdict nothing the owners say indicating we taken our here should be as views ’’ however, on that matter. Both from certain argue, sides that case, is, not, right or a statements made in the Peters there is against ease at property over the in the bar. owner plaintiff the Peters ease the brought against suit city and the Duques, property as owners, damages for by sustained her from by a fall ramp slope a or occasioned extending from building by Duques maintained and which depression extended across the sidewalk and caused a jury plaintiff therein. The against found for the city against respect Duques’ liability. with to the appeal, On judgment we affirmed against and re- portion versed that liability. which Duque exonerated defendant (1) We abutting held that: “The rule is an that land may dangerous owner be held liable for the condition of portions public of sidewalk which have been altered or constructed for property the benefit of his and which serve independent apart use ordinary and from the and ac use for which designed"; (2) customed “The sidewalks are duty portions to maintain of a sidewalk which have
been property for the property altered benefit of runs with land, liability and a cannot on avoid ground by request or the condition was created at the predecessors (3) in title”; his “The is under keep directly condition, liable sidewalks safe is pedestrians failing for to correct condition notice, responsi of which bility it is not its it had relieved of regard merely
in this because the condition was created might or owner who also maintained resulting pedestrians injuries therefrom”; liable for “ (4) regard persons injured such With who are joint a condition, the are or concurrent the landowner wrong directly is his feasors; tort each liable own for damage may each the entire be held suffered.” County Francisco, (Emphasis Peters San added; & there and cases Cal.2d cited.) portion emphasized (4) above, From the set forth defend abutting argue ants that since the owner and joint, tortfeasors, long or concurrent, established against joint rule this state contribution between tort applies. city, argues feasors this hand, on the other question indemnity. not a of contribution but of We if said in the Peters case that “Even such a to con recognized, however, tribution or were it would liability to mean, city, as asserted pedestrians merely dependent from that of оr derivative joint above, and not or direct. As noted landowner rule tort feasors admits contribution between may arise of some and a exceptions, indemnification considerations and is equitable as a result contract wholly liability, involving a vicarious restricted to situations paid a a master has such where resulting (41 his voluntary act of servant.” from the abutting an that when 419, 430, 431.) The contends for his streets an landowner makes unusual use express either private permission, it is own benefit with permission carries municipality; implied, will exercise the landowner implied condition that with an *4 hold the safety public and that it will for the due care of due by the lack any damages occasioned city harmless distinguished indemnity, words, In other care. relationship ex special some contribution, exists because loss and the entire isting two tortfeasors between indemnify. (Prosser Torts, shifted to the one bound on p. Runyon 249.) Angeles, Los ed., 2d v. § Cal.App. abutting 383, 389 was held: “The P. it [180 may owner, street, center of the whose title extends to the owner, a excavate vault or cellar under the sidewalk. Such permission city express implied— authorities, with implied time, where,
or inferred
after a reasonable
no ob
jеction
by
proper officials—mayinsert in
has been made
purpose
admitting light
air to
sidewalk,
for the
device,
cellar,
grating,
the vault or
an iron
or other similar
safely
properly
if
such contrivance
constructed,
(Rider
per
Clark,
v.
sidewalk is not
nuisance
se.
[132
(64
564)] supra;
Avoy,
Cal. 382
P.
Morrison
7 Cal.
v.
Unrep.
;
P.
Hirsch v. James
Co.,
S. Remick
626]
Cal.App. 764
876];
Thirkell,
Fisher
v.
The position It is the the absence of conflict with the statutory constitutional or state, law this the com- prevails (Civ. mon law Code, 22.2; Rush, Cole v. 45 Cal.2d § 345, 355 1137]) A.L.R2d the com- mon throughout law is consistent the United States that in- demnity is allowed such a situation as we have here. mаny cites cases from out-of-state courts in which indemnity has been allowed. The theories relied on courts have differed as has been heretofore noted inus Peters case. We opinions said there: “The cases, those however, recognize independent has an dangerous to correct conditions of which it notice, regard has less of who them, ‘secondary’ created and the term is not used therein to merely indicate that vicariously negligence for the Instead, appears landowner. the term is indicating used as means of that, jurisdic in the tion arose, city where the case has a to be indemnified by a compelled landowner in the event it is pay resulting from a condition he created or maintained pedestrians. and for which he regard would be liable to In this may jurisdictions be noted that a number of which adhere to the view that the and the landowner or con exception general current tort feasors make an to the rule joint wrongdoers contribution between and hold that municipality has a to be indemnified (Chicago such situation. Robbins, U.S.
132
Gaslight
; Washington
298,
422-423, 425
L.Ed.
302-303]
[17
564, 568,
Columbia, 161
316
Co. v. District
U.S.
S.Ct.
[16
of
City
Schubach,
266
712];
40
Salt Lake
108 Utah
L.Ed.
v.
149, 157-158,
809,
;
160 A.L.R
[159
821-822]
of
Gulf,
;
Fair,
276,
Tuscaloosa v.
tween
indemnity
municipality
from the landowner
is entitled
public ways
personal
thereby
using for his own
benefit and
causing injury
member of
to use the
to a
entitled
way. (City
customary
Spokane
or street in
v.
sidewalk
;
Co.,
that in a in the at situation such as we have case courts generally jurisdictions agree municipality of other that the has, have, against over action land- negligent public ways owner whose has caused it use damages public. general in member of to becomeliable to a Municipal McQuillin, Corporations, edition, In 19 third sec- pages 91-94, of a 54.19, “Indeed, tion municipality said: ‘the party against primarily to recover over long negligence has so that it is not been established ’ authority leading support of this rule questioned, now being Supreme Court, of the United which decision States approved or has been Dillon, Municipal Corporations, followed numerous cases.” edition,
fifth section municipal corрoration page is said: “If a be 3032, it held consequence liable for sustained unsafe remedy streets, it condition of the sidewalks or has a over wrongful person act conduct the whose side- corporation unsafe, unless walk or street was rendered wrong-doer, itself the author of itself between edition, on Torts, And Prosser second nuisance. ...” quite generally agreed it is page “Again, noted may in favor of who was that there one under only secondary duty primarily respon- where another was municipal corporation, liable for failure sible, as where held recovery keep condition, seeks streets safe *7 person who created condition owner who permitted it.” 790, Pellissier, 792, 793, 187 Cal. 794 Monsch v. injured 224], was because of the defective
P. where light-well in the sidewalk in front of of a defend- condition ant’s light-wells, therefore, court as property, “Inasmuch, said: such, seen, as we have were, constructed for her a use benefit of defendant and and for inde- the pendent apart ordinary from the and and accustomed use of upon law her be sidewalk, duty, casts of the dis- proper keeping of it in charged care, with reasonable and . . . safe cоndition. ‘‘ words, case, was, under the facts of this In other instance, independent city, to or notice in first repair (Emphasis upon gratings.” the defendant to east added.) Brooks, 153, (See also Sexton Claasen, 496]; Granucci v. Cal. P.2d 435].) 59 A.L.R. city municipality’s right
The also contends that action over the landowner in such a situation equity in justice; allowed the interests of that it is inequitable taxpayers negligent hold liable for the public maintenance of a structure in the sidewalk which inures only private to the landowner’s benefit. argues also that to hold the in negligence gift for such landowner’s constitutes a in IV, funds tion of violation of article section of the Constitu- provides, part, Legis-
California which that “The power give lature shall have no . . or to lend . the credit any county any . . . . . . ... of or aid person pledge thereof, any ... or to the credit manner whatever, payment for the liabilities indi- vidual. ...” argument
aAs final contends in the enactment of section Code of Civil Procedure which became January 1, 1958, Legislature expressly effective on recog- nized that there is a distinction in California between the right indemnity right and the to contribution. Section provides which joint contribution tortfeasors, between (f) sets forth subdivision impair “This title shall not any right indemnity existing under law, and where one tortfeasor debtor is entitled to from an- other there shall be no of contribution between them.” Argument
The Defendants’ Defendants contend the Peters ease laid down the rule that the and the landowner sepa are each liable for their wrongful they rate acts; and concurrent tort feasors; that there is no among joint to contribution tortfeasors California.* rely Defendants on Smith v. Fall River Sigh J. U. School
Dist., 331, 334, 1 Cal.2d In the Smith case, plaintiff injured as the result of a collision between operated by a school bus owned and one Pitzwater in which passenger she was a an automobile driven one Pratt. agreement Pitzwater an with whereby the school district paid per him transport so much month to pupils, living district, within the bus to school. Plaintiff sued the school district, Pitzwater, bus, driver of the Pratt, on ac- *8 noted, changed by Legislature *As heretofore this rule was by Procedure, the addition of section 875 of the Code of Civil effective January 1, present 1958. The action arose in 1952. concurring negligence their count of as the cause of her injuries. judgment against She recovered all three defend- appealed, only All ants. three defendants district and gave appeal stay Fitzwater a bond on execution. The Independence Indemnity Company surety was the on the judgment The Independent bond. was affirmed and the In- demnity Company paid plaintiff judg- amount full of the by The ment. satisfaction executed the plain- compel tiff filed until Pratt moved the court to entry. by granted trial motion was court and the indemnity appealed. company hearing At the time of motion, appeared prior Independ- the accident Company Indemnity writing ence had contracted with the against any school district to insure it and Fitzwater by the use of the bus. The loss occasioned school company subrogated to be contended it was entitled against rights of the all three defendants because “ap- stay given bond The court held if the the pellant’s it. liability parties was that sole herein incurred position undoubtedly stay bond, its correct.” It under said appellant from either the “As cannot recover was held indemnity bond, can it reason of its district or Fitzwater respondent negligence con- against whose recover [Pratt] plaintiff’s injuries? causing Fitzwater in with that of curred is no con- in this that there well settled state Tt is nеgli- joint concurrent whose between tribution tort-feasors damages. (Adams jointly liable in gence them has made 389].) Therefore, had Line, P. White Bus Cal. 710 [195 Fitzwater, or district defendants, the school either of two re- claim for contribution paid judgment, no said making said the defendant spondent been made could have judg- paying the after appellant, payment. Neither could the defendants, the school two indemnitor ment any- or recover Fitzwater, compel contribution district tort-feasor with the other thing respondent, from the definitely point This was the involved and two defendants. supra.” Line, v. White Bus in the case of Adams settled added.) The went on to hold that had the (Emphasis court only appeal stay indemnity company had bond and holding indemnity insurance the La there been no Co., Burns Lumber Cal. v. M. A. Fleur surety upon La ease applied. In the Fleur have would en- stay paid judgment and was held appeal bond Procedure of Civil under section 709 Code titled
137 subrogated all rights of the in the action in principal which its had been defendant. rely Defendants on Dow Sunset Tel. Co., & Tel. 162 Cal. 136, 138, 379], support P. in position of their draw, the California courts do not a distinction between “passive” negligence. and “aсtive” In plain the Dow ease employee tiff was the Telephone Telegraph Sunset and Company. The telephone facts showed that company originally strung its wire too close to wires the Oakland Gas, Light Company. and Heat The wires of the Oakland light company improperly were insulated and the contact be companies tween the produced installations of the two a dan gerous supercharge electricity. employee-of An the Oak company reported land danger superior his but it took steps no either to correct the teleрhone trouble or to warn the company. superior Plaintiff was his in assured the tele phone company that supercharged the wire was not with electricity making investigation and while an of some trouble telephone seriously injured with the wire was as a result of an telephone electric shock received from brought one wires. He an companies action and recovered a (Dow judgment appeal which was affirmed on v. Sunset Co., 587]). Tel. Tel. & Cal. P. col Plaintiff Light lected the entire from the Gas, Oakland Company sought it Heat and thereafter contribution from telephone company. companies The court held: “Both liable, appellant only passively it were insists that was guilty excep a tort within an therefore comes general tion to rule above stated. With this view we agree. separate duty It cannot ough was the of each to take thor neglect Any precautions. of such accident due corporations jointly made the liable.” The court in the Forsythe Angeles Ry. Co., Dow case cites v. Los Cal. Steamship Co., 24], P. Fowden v. Coast Pacific support statement that 151,157 of its Cal. all joint no feasors. there is contribution between tоrt sought by three cases joint of these contribution was one tort against the feasor other. It conceded that the rule Cali always has been that there no fornia can be con enforced tribution between tort feasors. In bar, the case at how indemnity ever, seeks from defendants because of the special relationship existing licensor-licensee between them respect public ways. with to the use of the Liability that the Public of 1923
Defendants contend Act (Gov. Code, 53050, 53051) strong ‘‘evidenced §§ policy placing responsibility financial on favor public ways keep condition”; for failure to safe if entitled responsibility from all for its own will exonerate (41 neglect. held in the case We Peters directly pedestrians fail 429) that the ing of which it had notice to correct a condition responsibility regard “it is not relieved of its this merely because the condition was created or maintained might pedestrians owner who also liable to *10 injuries resulting We also held that therefrom.” right if contribution or were to “Even by the recognized, however, mean, as asserted would merely liability pedestrians dependent to or city, that is joint or from that of the landowner and not dеrivative (Pp. 430, 431.) direct.” adjoining property an owner
We conclude where property places his in for the exclusive benefit of own public or artificial structure street sidewalk some compensation of compelled pay to in to a member is injured thereby right public to recover the the has a indemnity. by way paid of from the amount so depart holding in holding, from our we do not so quoted just We affirm our statement there Peters ease above. against holding has over that in city’s liability to not mean that the property owner we do dependent public merely is or de injurеd member joint or direct. and not rivative judgment is reversed. Traynor, J., Spence, J., con- Gibson, Shenk, J., J.,C. curred. my Dissenting. It is view that inasmuch CHATTER,J., S injured pedestrian, to the Mrs.
as was held liable perform obligations failure of its own Wagner, because permitted recovery directly over her, no owed abutting property owner. This city’s favor as Wagner further fact that Mrs. emphasized is conclusion injury had not if the her sustained would have hereinafter her. As perform duty it owed to neglected to
139 majority ruling shown creates new and enforces it retroactively. By adoption Liability (now of Public Act Gov. Code, 53051) Legislature imрosed upon municipalities § liability persons injured dangerous from the or defective condition of “if legislative streets and body, sidewalks board, person remedy or (a) authorized to the condition: Had condition, knowledge or notice or the defective (b) For a acquiring knowledge reasonable time after receiving remedy (Gov. failed to notice, the condition ...” City Code, also 53051; Diego see Fackrell v. (1945), § San ; P.2d 158 A.L.R. [9] [157 773] City Angeles Ackers (1940), Cal.App.2d 50, v. Los 399]; P.2d (1950), Jones South San Francisco Cal.App.2d 427, 25].) 430-433 The Streets Highways provides “The own Code section fronting ers of any portion lots . of a . . . . on street . any when that improved ., . shall maintain street ... . endanger sidewalk in such condition that the will not sidewalk persons ...” The same in section 5611 directs code “When portion of the sidewalk is repair out of . . . and in endanger persons condition to ... the use of such superintendent sidewalk, the shall notify streets the owner person possession fronting on that portion of repair, repair such sidewalk so out of the side walk,” (§5615) repair “If not commenced and prosecuted completion diligence, required by with due *11 superintendent notice, repair the of shall the streets forthwith (See also, the sidewalk.” v. Brooks (1952), Sexton 39 Cal. 153, ; 2d 157-158 P.2d (1945), Laurenzi v. Vranizan [245 496] 806, ; 25 Cal.2d 809-812 P.2d Lenahan v. [155 633] Schaefer (1944), Cal.App.2d 324, 929]; 63 326-327 P.2d Barton [146 Cal.App.2d Capitol (1943), 516, Market 847].) 57 v. 517-518 [1] It P.2d follows that entered [134 Wagner, pedestrian, in favor of the Mrs. city city it established as a matter of law that became dangerous knowledge of had or notice and defective side walk exist thereby. 2d dangerous This 248, 254 landowner condition and beyond court (See condition [1] a reasonable time has i,s Arellano v. to use due care [89 specifically permitted P.2d for the benefit City 113].) such declared of and until she was not to create or Burbank condition of his that “Thе while property, (1939), to continue maintain of duty injured 13 Cal. to 140 city of is due to to use care discover and remove liability Thus, the each conditions. of defective [Citations.] upon wrongful type of defendant is based his individual act possible verdict, to it is have valid exonerat- omission,
or v. ing one and 428-429 In the City County & [14] Peters holding [260 case the P.2d of the other. San city argued 55]. Francisco [Citations.] that the (1953), judgment against judgment against 41 Cal.2d ...” (Peters 419, should be reversed because was no it there agree. “We do landowner, but we there stated that condition, keep duty to in safe is under sidewalks pedestrians failing to directly liable for сorrect it is to is not notice, of which it had and it condition merely regard responsibility in because of this relieved its by a owner the condition was or maintained created resulting might pedestrians injuries for who also be liable to therefrom. his own injured by 2d San Francisco 16] dino City damage (1941), 485].) 123, ; see P-.2d (1935), or'concurrent Sacramento suffered. also, wrong 434] Los Thus, Cal.App.2d such [2] [Citations.] Douglass City Angeles ; Wilkes v. (1953), and each it is not [Citations.] condition, the P.2d (1954), tort v. supra, (1930), 353] feasors; each is for may With City County ; ” (Peters City Bosqui v. of 41 [9] [43 Cal.App.2d [5] 110 & regard Los act held liable Cal.2d Cal.App. 663, Angeles P.2d neglect City v. directly 419, persons who 547] landowner San Francisco for the entire (1935), 759] 429 [14, 15, & San Bernar 723-725 [1] ; County liable Marsh v. ; Mulder 5 Cal. prop are for of liable; all, if at not on erty liable, owner that rather, theory respondeat superior, but as that of duty. perhaps more solely And, of its own breach original recognized that the acts must be important, it necessary city) were (the owners and the defendants If pedestrian, Wagner. injury Mrs. produce the discharged property. either not have imposed accident would respectively on them the happened. require appears that to to me circumstances these Undеr negligence merely for his own to answer city the landowner independent tort will indemnify the also to making the purpose Legislature’s tend defeat inspect vigilantly failing negligence for its own *12 diligently require abutting prop- maintain, owners of erty to maintain, sidewalks in a safe condition. If such a by created and enforced this court, most natural result will encouragement laxity part be on the of the carrying obligation discovery out its inspection, patent proper defects, and safety maintenance of sidewalks for the public. proposal The that it in- should be by demnified owner for what it terms its own “passive” negligence permitting condition to promptly positively rejected. continue be obviously presents This matter no such case as San Fran- cisco Bldg. Sch. Dist. v. (1958), etc. Co. Unified California Cal.App.2d 434, 443 785], wherein the [5] [328 expressly court recognized the rule that there is no among joint contribution properly tort feasors but held that in the circumstances of that inapplicable ease the rule was ‘‘ because of the parties. contractual relations of the The con- provided tract sponsible . . . . . . ‘is held re- [defendant] payment any damages’ resulting and all from operations. its Even if this did not amount [Italics added.] express to an indemnify contract to the school district for caused to it breach of the contract ., warranty . agreement indemnify . [defendant] necessarily implied. would Whether the school district precluded [plaintiff] recovery by should be reason of conduct, is, that whether the helped conduct of the district bring about damage, question is at least a of fact and jury. should have been left to Under such circumstances grant it was error to (Pp. nonsuit.” 448-449 of 162 Cal. App.2d.) only case before us not agreement does not show indemnify owners to for the breach of its clear, law, makes as a matter of the fact that helped bring “the conduct of the [city] damage.” about the bar, therefore, fundamentally The ease at indistinguishable governed from, and should be by, Dow v. Sunset Tel. & Tel. (1912), Co. Cal. 138-140 and cases (See there 413.) cited. also 23 case, So.Cal.L.Rev. this as independent negligence Dow, in necessary tort feasors was pedestrian’s injury.
to cause the Prom the fact personal injury that the in the basic action was in favor of therein entered and has become final property owners, both the and the it follows *13 (impliсit a matter law in the determination adverse to respective action) the sub- defendants such basic injury
ject (a) not if would have occurred either (b) owner had not created the condition or permitted to continue after it had notice and the condition right of to correct it. Thus the to claim was bound consequences ensuing indemnification its own recovery, known tort not heretofore new retroactively state, of this and it is enforced the same law rulings it. favor decision which creates Such find the court. with judgment denying recovery city. I affirm the to the would McComb, concurred. J., 24, 1958.] No. 6268. Bank. Oct.
[Crim. Respondent, PEOPLE, POINDEXTER, LUTHER THE
Appellant.