Cobb v. Southern Pacific Co.

California Court of Appeal Jun 21, 1967 No. Civ. 11440Published

Before: Van Dyke

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Holding. The court held that Southern Pacific was entitled to implied indemnity from Keeter because Southern Pacific's liability to the plaintiff was secondary, arising from a failure to discover a dangerous condition created by Keeter's primary negligence. Consequently, Southern Pacific was not barred from asserting this right as a defense against Keeter's motion for contribution.

Issues

Whether Southern Pacific was entitled to implied indemnity from Keeter despite being found a joint tortfeasor.
Whether Southern Pacific was estopped from asserting a right to indemnity after dismissing its cross-complaint.
Whether Southern Pacific's negligence was active, thereby barring its right to indemnity.

Disposition. affirmed

Quotations verified verbatim against the opinion

“In this case the fault of Southern Pacific Company which rendered it liable to Cobb arose because of a failure to discover or correct the dangerous condition in which Keeter had left the swaybar”

“Thus, Southern Pacific’s liability was secondary to the primary liability of Keeter and the law raises an indemnity in Southern Pacific’s favor.”

“Southern Pacific’s dismissal of its cross-complaint did not bar a defense against a claim for contribution based on a right of indemnity.”

VAN DYKE, J.

pro tem.

—This is an appeal from a judgment of the Superior Court of Sacramento County. Plaintiff Howard M. Cobb filed suit against the Southern Pacific Com

[931]

pany seeking recovery under the Federal Employers Liability Act, 45 United States Code Annotated, section 51 et seq., for personal injuries allegedly sustained on or about July 12, 1962. Cobb later amended his complaint joining Gordon Keeter and Drywall Supply Company, Inc., as parties defendant and alleging that all defendants negligently caused plaintiff’s injuries. Nonsuit was granted in favor of Drywall Supply Company, Inc. Trial was had to a jury as between Cobb and Southern Pacific and Keeter, and the jury returned a verdict in favor of Cobb and against both Southern Pacific and Keeter. Keeter paid the judgment and then filed proceedings for contribution pursuant to sections 875-878, Code of Civil Procedure. Southern Pacific defended upon the ground that it was the beneficiary of an implied indemnity, running from Keeter to it. The trial court ruled that Southern Pacific Company was entitled to be indemnified by Keeter and denied the motion for contribution.

Cobb was a switchman who was injured while working for Southern Pacific. The injury occurred in an industrial area near North Sacramento called “The Ben Ali Area.” Sometime prior to July 9, 1962, Drywall Supply, Inc., had ordered a flatcar load of plasterboard from Kaiser Gypsum Company for resale to Gordon Keeter, and on July 9 a flatcar with a load of plasterboard was spotted by Southern Pacific on a team track in the Ben Ali area. This flatcar load of plasterboard had been shipped by Kaiser Gypsum Company from Antioch, California, and was consigned to Drywall Supply, Inc., in care of Gordon Keeter. The flatcar was equipped with four iron bars (“swaybars”), each of which was nine feet long. These swaybars were permanently secured at the top comer of each bulkhead, approximately seven feet above the flatcar’s deck, and when in use extended on a 45° angle down toward turnbuckles which fastened them to the side of the flatcar. The turnbuckles fastening the swaybars in position were designed to be unfastened to permit the bars to fall to a vertical position in order to facilitate the unloading of the plasterboard. Keeter and his employees unfastened each of the four swaybars during the process of unloading the plasterboard. The unloading was completed on July 11, 1962, at about 5 p.m., and between that time and 6 p.m. an employee of Drywall Supply, Inc., telephoned Southern Pacific and requested that it pick up the unloaded flatcar. At about 3 :30 a.m. July 12, 1962, Southern Pacific sent a switching crew, including Cobb, and a switch engine with crew to the place

Cobb v. Southern Pacific Co.

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VAN DYKE, J.

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