Linday v. American President Lines, Ltd.

SHOEMAKER, J.

Plaintiff, a seaman, brought this action against his employer, American President Lines, Ltd., to recover for injuries sustained when he was assaulted by a fellow crewmember, one Herbert Suvaco. The complaint set forth two alternate theories of liability: (1) that defendant was negligent in signing and retaining the assailant with knowledge of his dangerous disposition; and (2) that the ves

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sel on which plaintiff was employed was rendered unseaworthy by defendant shipowner’s failure to furnish crew-members equal in disposition to ordinary men of their calling.

Defendant answered, and, on the same day, filed a cross-complaint against cross-defendant Herbert Suvaco. The essential allegations of the cross-complaint were that cross-defendant had obtained employment by holding himself out as a capable and satisfactory employee, but had thereafter been guilty of misconduct and breached his contract by committing assault and battery upon plaintiff. Cross-complainant sought indemnity over against cross-defendant for any damages which it might ultimately sustain as a result of plaintiff’s injury.

Plaintiff then moved to strike the cross-complaint on the grounds: (1) that it was not asserted in good faith; and (2) that it was asserted for the purpose of prejudicing plaintiff’s action. The trial court, after hearing the matter, granted the motion and ordered the cross-complaint stricken. Prom this order, defendant and cross-complainant appeals.

Code of Civil Procedure, section 442, provides in part as follows: “Whenever the defendant seeks affirmative relief against any person, whether or not a party to the original action, relating to or depending upon the contract, transaction, matter, happening or accident upon which the action is brought . . . , he may, in addition to his answer, file at the same time, or by permission of the court subsequently, a cross-complaint. ...”

Respondent’s sole argument in support of the order appealed from is that a cross-complaint, even though fulfilling the requirements of Code of Civil Procedure, section 442, may be disallowed if the trial court, in the exercise of its discretion, concludes that prejudice will otherwise result to the plaintiff. Respondent contends, more specifically, that appellant was fully aware, when it filed its cross-complaint, that cross-defendant was an uninsured seaman whose future earnings were at best speculative. Under such circumstances, respondent asserts that appellant had no genuine hope of indemnity, but sought only to prejudice respondent by creating upon the jury the false impression that any verdict in respondent’s favor would ultimately be borne by an individual seaman rather than by appellant, a corporation possessing substantial assets. Respondent relies upon two federal district court decisions,