American Trust Co. v. Truck Insurance Exchange

[396]

AGEE, J. pro tem.

*

Defendant Joseph R. Quinn appeals from a judgment in a declaratory relief action brought by plaintiff to have declared certain rights and duties under indemnity provisions in a lease.

On March 25, 1951, appellant was the tenant in possession of premises known as the “Aetna Garage,” 525 Jones

Street,

San Francisco, under a written lease executed by the owner, Eomelda Baccioeco. Appellant had acquired the lease by assignment and was obligated by written agreement to comply with the terms thereof. On the date stated, one Holt was walking in front of the premises and was injured when he fell upon the sidewalk. He filed an action on July 10, 1951, for damages against the city and county of San Francisco, Eomelda Baccioeco and appellant, claiming that his fall was caused “because of the dangerous construction of said sidewalk abutting said premises.” On October 23, 1951, Holt filed an amended complaint, to which separate answers were filed by these three defendants. Eomelda Baccioeco thereafter died and the American Trust Company, respondent herein, was appointed the administrator of her estate and substituted in the Holt action in her place.

The amended complaint in the Holt action is in three counts. The first is against the city, the second against decedent, and the third against appellant. The second count alleges that decedent was the owner of the premises and that she “carelessly and negligently allowed and permitted the sidewalk abutting said premises to be constructed and caused to be constructed in an unsafe and defective condition and to remain in said unsafe and defective condition, in that said sidewalk was constructed with elevations in portions of said sidewalk leading into said 525 Jones Street, creating contours in said sidewalk’s normal flat surface; that cement guards were attached to said building and said guards projected into the sidewalk and were attached to said sidewalk and that said . . . [owner] well knew or in the exercise of ordinary care should have known of said dangerous and defective and unsafe condition of said sidewalk at said point.”

On December 8, 1954, respondent commenced this action to have its rights and duties declared with relation to the Holt action. The controversy between respondent and appellant is over the indemnity provisions in the lease as the same relate to the Holt action. The only evidence introduced at the trial was the lease, the written agreement by appellant