Bendix-Westinghouse Automotive Air Brake Co. v. Swan Rubber Co.

Opinion

PARAS, J.

As aresult of injuries "sustained by plaintiffs when their automobile collided with a truck, plaintiffs filed suit against the truck driver and his employer, Trails Trucking Company, claiming negligence. On January 30, 1968, plaintiffs amended their complaint by adding San Jose Autocar White Company (hereinafter “Autocar”) as a third defendant. Autocar was sued on breach of warranty and products liability theories for allegedly installing a faulty air brake hose on the truck.

On Februaiy 5, 1968, Autocar filed a cross-complaint against Bendix-Westinghouse Automotive Air Brake Company (hereinafter “Bendix”) and alleged that the faulty brake hose had been manufactured and supplied to Autocar by Bendix. Plaintiffs then served Bendix as a fictitious defendant, and Bendix filed an answer to the amended complaint (and later answered the Autocar cross-complaint). During a pretrial conference held on September 30, 1968, Bendix indicated to the court that Swan Rubber Company (hereinafter “Swan”) should possibly be made a party, because, it might have initially manufactured the allegedly faulty air brake hose and sold it to Bendix; Bendix was “fairly sure but not positive” of this. The pretrial conference order stated: “ . ..

If such Swan Rubber Company is to be made a party to the action proceedings will be filed and served on or before October 31, 1968;

otherwise the responsibility, if any, of Swan Rubber Company will be determined by independent action.” (Italics in original.)

On October 31, 1968, Bendix filed a notice of motion for leave to file a cross-complaint for indemnity against Swan. After a hearing and favorable ruling on November 12, 1968, this cross-complaint was filed on November 14, 1968 and was served on Swan on December 17, 1968.

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Likewise on October 31, 1968, Bendix mailed Swan a letter notifying it of the pending litigation. The letter stated that the lawsuit involved an allegedly faulty air brake hose; that certain markings on the hose revealed that it was distributed by Bendix; and that a lengthy investigation of the age of the hose and of the nearly obliterated markings thereon revealed that only Swan could have been its manufacturer and supplier. Bendix indicated further that it was entitled to indemnity from Swan and demanded such indemnity, along with an immediate assumption of the defense of the pending action. The letter additionally stated that the trial was set for January 7, 1969, but assured Swan that it would not be prejudiced by taking over the defense because Bendix had already done a substantial amount of the preparation for trial.