Simon Hardware Co. v. Pacific Tire & Rubber Co.

DEVINE, J.

Plaintiff alleges in her complaint that she was injured as the result of the blowout of a tire which she had purchased from Simon Hardware Company, and she seeks damages for breach of an implied warranty. She states a cause for negligence, but in very general terms, and only

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against fictitious defendants. Simon Hardware generally denies and sets up affirmative defenses, but there is no issue before us on this appeal as between plaintiff and Simon Hardware. The issue in the case relates to the first amended cross-complaint of Simon Hardware against Pacific Tire & Rubber Company, cross-defendant. In said cross-complaint Simon Hardware alleges: (1) that Simon Hardware bought certain tires from Pacific Tire, and, on information and belief, that one of these tires has been supplied to plaintiff by Simon Hardware, and that, should it be determined that Simon Hardware is liable to plaintiff, this would have been caused by active and primary negligence of Pacific Tire; (2) an implied agreement of indemnity by Pacific Tire to Simon Hardware; (3) express warranty of safety and suitability of the tires; (4) implied warranty thereof. The cross-complaint states that an actual controversy exists between cross-complainant and cross-defendant in that the former avers and the latter denies that full liability rests with cross-defendant.

The cross-complaint contains allegations that all of the obligations of the parties arose from the same transaction and all of them should be settled in the same action, and that cross-complainant will be subject to unreasonable burden at the risk of irreparable injury if all of such rights of the respective parties are not now determined. Cross-complainant prays for judgment declaring the rights and duties of the cross-defendant; that if the court determines that any sum is due to plaintiff, the court determine that liability is that of cross-defendant, and, generally, for reimbursement for all losses by reason of breaches of warranty. There is a prayer for counsel fees and costs.

Pacific Tire filed a general demurrer on the ground that each of the causes does not state facts sufficient to state a cause of action. Following argument and submission of briefs, the court sustained the demurrer without leave to amend, and made its judgment of dismissal without prejudice to the filing of a separate action, and awarding costs in the sum of $13.50 to cross-defendant. From that judgment Simon Hardware appeals.