Pierce v. Turner

SCHOTTKY, J.

This is an appeal on the judgment roll by Alva L. Turner from a judgment in contribution in favor of Kenneth Pierce. Diamond Gardner Corporation against whom a judgment was also rendered has dismissed its appeal.

Diamond Gardner Corporation employed Alva L. Turner to fell certain timber it had purchased from the United States. Turner, in turn, employed Kenneth Pierce to cut the timber. On May 22, 1957, Pierce, while in the course of his employment, negligently cut one of the trees in such a manner that it struck another tree which fell and damaged the home of Mr. and Mrs. Charles P. Haines. They sued Pierce, Diamond Gardner Corporation and Turner for the damage caused and recovered a judgment against the three defendants in the sum of $2,912.50. Thereafter, Charles and Wilma Haines satisfied the judgment by executing on a bank account in the name of Kenneth Pierce, who then made a motion under the provisions of section 875 of the Code of Civil Procedure for contribution by the other defendants. Pursuant to the request the court entered a judgment of contribution.

The court found as follows:

“(1) That on April 15, 1959 judgment was rendered jointly against the above named defendants in the sum of $2,912.50, plus costs which were thereafter fixed at the sum of $61.98.

“ (2) That the above entitled action was a tort action.

“ (3) That on, or about, the 9th day of July, 1959, a writ of execution was issued out of the above entitled Court to satisfy the aforementioned judgment, plus accrued costs, plus interest accrued in the sum of $27.17 and further costs in the sum of $3.45 for levy of said writ, or a total of $3,005.00.

“ (4) That thereafter defendant Kenneth Pierce paid the full amount of $3,005.00.

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“(5) That none of the other defendants have contributed or paid any part of said judgment.

” (6) That there was no agreement of indemnity between defendant Kenneth Piebce, on the one hand, and either of the other two defendants, namely Diamond Gaedneb Cobpobation, a corporation, and Alva L. Tubneb. Nor were there any facts from which any obligations of Piebce to indemnify either of the other two defendants could be inferred.”