PROVENCAL v PARKER
Docket Nos. 21473, 21474
66 Mich App 431
January 6, 1976
Submitted October 17, 1975, at Detroit.
OPINION OF THE COURT
1. INDEMNITY—EQUITY—RESTITUTION.
Indеmnification rests upon the equitable principle of a right to restitution; a person may have indemnity where the wrongful act of another results in liability being imposed on the person seeking indemnity.
2. INDEMNITY—ACTIVE NEGLIGENCE—PLEADING.
A party seeking indemnity must plead and prove freedom оn his part from personal fault; the party must be free from active or causal negligence.
3. INDEMNITY—TORTS—JOINT TORTFEASORS.
There is no right of indemnification between actual joint tortfeasors or tortfeasors in pari delicto.
4. INDEMNITY—ACTIVE NEGLIGENCE.
A claim for indemnity will lie only against a party guilty оf active negligence.
REFERENCES FOR POINTS IN HEADNOTES
[1] 41 Am Jur 2d, Indemnity § 2.
[2] 41 Am Jur 2d, Indemnity §§ 15, 16.
Validity of contractual provision by one other than carrier or employer for exemption from liability, or indemnification, for consequences of own negligence. 175 ALR 8.
[3-5] 41 Am Jur 2d, Indemnity §§ 11, 19 et seq.
Right of tortfeasor guilty of only ordinary negligence to be indemnified by one guilty of intentional wrongdoing, wanton misconduct, or gross negligence. 88 ALR2d 1355.
[6] 8 Am Jur 2d, Automobiles and Highway Traffic § 582.
[7, 9, 11] 41 Am Jur 2d, Indemnity §§ 18, 22.
53 Am Jur 2d, Master and Servant §§ 405, 408.
[8, 9, 11] 53 Am Jur 2d, Master and Servant § 417 et seq.
[10, 11] 53 Am Jur 2d, Master and Servant § 403.
[11] Employer‘s right of action against third person tortiously killing or injuring employee. 57 ALR2d 802.
A claim for indemnity against a party guilty of active negligence arises where two parties are liable to an injured person, but the injury results from a violation by one of the duty which he owes to the injured person; as between the two tortfeasors the act or omission of the one from whom indemnity is sought must be the primary cause of the injury.
6. AUTOMOBILES—OWNER‘S LIABILITY STATUTE—PASSIVE TORTFEASORS—STATUTES.
A рarty whose liability is predicated on the owner‘s liability statute is a passive tortfeasor (
7. MASTER AND SERVANT—DUTY OF EMPLOYER—AUTOMOBILES—TRAVEL TO JOB LOCATION.
An employer has no legal duty to supervise or control his employees while they jump-start a car in order to drive the car to another job location.
8. MASTER AND SERVANT—RESPONDEAT SUPERIOR—PASSIVE NEGLIGENCE.
An employer‘s liability under respondeat superior for the negligent acts of an employee is of a secondary nature and is only passive negligence.
9. INDEMNITY—AUTOMOBILES—OWNER‘S LIABILITY STATUTE—NEGLIGENCE—MASTER AND SERVANT—RESPONDEAT SUPERIOR.
A defendant automobile owner, who loaned his car to his father and who was hеld liable under the owner‘s liability statute to a fellow employee of his father after an accident while jump-starting the automobile at a job site, is not entitled to indemnification from the employer where the employer was not actively negligent and the employer‘s liability could only be based on respondeat superior (
DISSENT BY J. H. GILLIS, J.
10. WORKMEN‘S COMPENSATION—FAULT OF CO-EMPLOYEE—PROHIBITION OF SUIT—CASE PRECEDENT—STATUTES.
Case precedent permits circumvention of a Workmen‘s Compensation Act prohibition of suits based on the fault of a fellow employee for an accident arising out of the employment (
Under case precedent an automobile owner who loaned his car to his father and who was held liable under the owner‘s liability statute to a fellow employee of his father after an acсident at a job site is entitled to indemnification from his father‘s employer, who is liable under respondeat superior for the negligence of its employee, and the employer is entitled to indemnification from defendant‘s father who negligently caused the accident.
Appeal from Oakland, William R. Beasley, J. Submitted October 17, 1975, at Detroit. (Docket Nos. 21473, 21474.) Decided January 6, 1976.
Complaint by John D. Provencal and Rose Ann Provencal against Robert Parker for damages for injuries sustained while starting a cаr with jumper cables. Third-party complaint by Robert Parker against Arthur Rohn, Jr., doing business as Arthur Rohn Painters & Decorators, for indemnification. Fourth-party complaint by Arthur Rohn, Jr., against Samuel Parker for indemnification. Judgment for the Provencals. Judgments for Robert Parker аnd Arthur Rohn, Jr., allowing indemnification. Samuel Parker appeals. Arthur Rohn, Jr., cross-appeals. Judgments of indemnification for Robert Parker and Arthur Rohn, Jr., reversed.
Coticchio, Zotter & Sullivan, P. C. (by Timothy J. Sullivan), for Robert Parker.
Plunkett, Cooney, Rutt, Watters, Stanczyk & Pedersen (by Robert H. Martin and Charles A. Huckabay), for Arthur Rohn, Jr.
Bell, Hertler & Hopkins, P. C., for Samuel Parker.
BASHARA, J. This is an appeal arising out of an automobile negligence action. The facts appear to be confusing because of the number of parties involved.
On February 20, 1969 the fourth party defendant, Samuel Parker [hereinafter referred to as Samuel], borrowed a car owned by his son to drive to work. The son was the original defendant, Robert Parker [hereinafter referred to as defendant]. Samuel was employed as a painter by the third party defendant, Arthur Rohn, Jr. [hereinafter referred to as the employer].
At work the employer directed Samuel to proceed to another painting job. Samuel went to his car and encountered difficulty starting it due to a discharged battery. The plaintiff, a co-employee of Samuеl, offered assistance in jump-starting the car. The plaintiff pulled his car up to face Samuel‘s car and attached jumper cables to both cars. In the process of starting the disabled car, Samuel‘s car slipped into gear and rollеd forward pinning the plaintiff between both cars and seriously injuring him.
Plaintiff sued defendant as owner of the car under the owner‘s liability statute.
On stipulation of the parties the only issues submitted to the jury were those of liability of the defendant and damages to the plaintiff in the principal case. A jury verdict was returned in
On appeal, Samuel argues that the employer is not entitled to indemnity because the Workmen‘s Compensation Act,
Indemnification rests upon the equitable principle of a right to restitution. Dale v Whiteman, supra. The theory of indemnity is that where the wrongful act of one results in liability being imposed on another, such other person may have indemnity from the pеrson actually guilty of the wrong. Hart Twp v Noret, 191 Mich 427; 158 NW 17 (1916), Detroit, G H & M R Co v Boomer, 194 Mich 52; 160 NW 542 (1916), Village of Portland v Citizens Telephone Co, 206 Mich 632; 173 NW 382 (1919), Indemnity Insurance Co of North America
Since indemnification is founded upon equitable principles, a claim for indemnity will only lie against a party guilty of “active” negligence. Such a claim arises where two parties are liable to the injured person, but the injury results from a violation by one of the duty which he owes to the injured person. As between the two tortfeasors the act or omission of the one from whom indemnity is sought must be the primаry cause of the injury. See Daly v Bergstedt, 267 Minn 244; 126 NW2d 242 (1964).2
Our consideration of the principles of indemnity revolves around the application of Dale v Whiteman, supra, to the present case. In Dale the defendant brought his car to Goldfarb‘s car wash to be cleaned. The car was pulled through the car wash by a chain. Fоx, an employee of Goldfarb, drove the car off the line and over to the drying area where he hit the plaintiff, a co-employee who
“In this case, the right to indemnity might be predicated upon the theory of a bailment *** Or it might be implied as a part of the undertaking of Goldfаrb to wash the car in a workmanlike fashion ***. We prefer to base such right upon the equitable principle that Whiteman was without personal fault or as the United States Supreme Court reasoned in Italia Societa per Azioni di Navigazione v Oregon Stevedoring Co, Inc, 376 US 315, 324; 84 S Ct 748; 11 L Ed 2d 732 (1964): [L]iability should fall upon the party best situated to adopt preventive measures and thereby to reduce the likelihood of injury.‘” Dale v Whiteman, supra, at 706.
The holding in Dale is unclear and is susceptible to two possible constructions. One possibility is that the right of indemnity was predicated on either the “active” tortfeasor theory or the implied warranty theory used in Italia, supra. However, it seems unlikely that liability was predicated on the implied undertaking theory because the Dale Court did not prefer to base Goldfarb‘s liability on an impliеd undertaking.
A second possible construction is that the language taken from Italia in Dale only explains the type of negligence, either active or passive, attributable to Goldfarb. Looking at the quote from Italia in context is instructive:
“[L]iability should fall upon the party best situated to аdopt preventive measures and thereby to reduce the likelihood of injury. Where, as here, injury-producing and defective equipment is under the supervision and control of the stevedore, the shipowner is powerless to
minimize the risk; the stevedore is not.” (Emphasis supplied.) Italia Societa per Azioni di Navigazione, supra, 376 US 324.
We adopt this construction and find Dale to stand for the proposition that the car owner defendant was a passive tortfeasor and was entitled to indemnification against the car wash owner Goldfarb, on the basis that Goldfarb was actively negligent in failing to supervise and control his employees.
In the present case there can be no doubt that the defendant whose liability was predicated on the owner‘s liability statute was a passive tortfeasor. Boucher v Thomsen, 328 Mich 312, 316; 43 NW2d 866 (1950). For the defendant to recover оn a theory of indemnity against the employer, it must be found that the employer was an active tortfeasor. The trial judge failed to make any finding of this nature, but rather ruled that the defendant was entitled to indemnification under the holding of Dale v Whiteman, supra. This was error. We must determine if we can rule as a matter of law on whether the employer‘s liability was attributable to active or passive negligence.
In the present case the employer directed Samuel to another painting job. Samuel was unable to start the car and obtained assistance from the plaintiff to help him jump-start the car. When the disabled car started it slipped into gear, rolled forward and pinned the plaintiff between his own car and Samuel‘s car. We hold as a matter of law there was no legal duty for the employer to supervise or control his employees while they jump-start a car to proceed to another job. If liability attached at all, it must attach on the theory of respondeat superior, that is, thе employer is liable for injuries to third persons caused by the negligent acts of an employee while in the course and scope of employment. Loux v Harris, 226 Mich 315; 197 NW 494 (1924), Barnes v Mitchell, 341
Since both the defendant and the employer were guilty of passive negligence, the defendant was not entitled to indemnification from the employer. See Roe v Bryant & Johnston Co, supra. The tortfeasor guilty of active nеgligence was Samuel and the defendant‘s action for indemnification should have been against him.
The judgment for indemnification against the employer Rohn, and against Samuel are reversed.
V. J. BRENNAN, P. J., concurred.
J. H. GILLIS, J. (dissenting). This is a difficult case for the dissenter to analyze and cоmprehend. It is perhaps more difficult for the dissenter inasmuch as I agree with the dissent in Dale v Whiteman, 388 Mich 698; 202 NW2d 797 (1972).
Recognizing the fact that I am bound to follow the majority opinion in Dale, I find it difficult to distinguish the rationale utilized in the majority opinion with that utilized in the majority opinion in the instant casе.
If we are going to circumvent the Michigan Workmen‘s Compensation statute,
Unless and until the Michigan Supreme Court retreats from its position in Dale, I would affirm the trial court.