Argonaut Insurance Exchange v. San Diego Gas & Electric Co.

BARNARD, P. J. The plaintiff brought this action against the defendant San Diego Gas and Electric Company. The complaint alleged that the plaintiff was the Workmen's Compensation Insurance carrier for the Chagnon Electric Company; that one Nelson, an employee of Chagnon Electric Company, was injured while in the course of his employment; that his injuries were directly and proximately caused by the negligence of the defendant gas company; and that because of these injuries and pursuant to the workmen’s compensation statutes the plaintiff, as the insurer of Chagnon Electric Company, had been obliged to pay the workmen’s compensation amounting to $6,662.75. Based on a subrogation theory, the plaintiff prayed for judgment against the gas company for $6,662.75 as reimbursement for the amount it had been obliged to pay.

So far as material here, the defendant gas company filed a cross-complaint naming the Chagnon Electric Company as the cross-defendant. It was alleged therein that the cross-defendant was performing work under a written contract for the cross-complainant at the time of the accident; that the cross-defendant and its agents, including Nelson, were guilty of negligence which caused or contributed to the accident; and that by a written contract between them the cross-defendant had agreed to indemnify and save harmless the cross-complainant from all loss, damage or liability that might arise from the accident in question. The prayer was that in the event the plaintiff should recover judgment against the cross-complainant, it should have judgment in the same amount against the cross-defendant. The cross-defendant Chagnon Electric Company filed a demurrer to the cross-complaint which was sustained without leave to amend, and judgment was entered decreeing that the gas company take nothing by reason of its cross-complaint.

[159]The defendant gas company has appealed from the judgment, contending that its cross-complaint stated a cause of action in that it alleged a contract under which Chagnon Electric Company agreed to indemnify and save harmless the gas company from any loss or liability that might arise from this accident; that sections 442 and 389 of the Code of Civil Procedure were designed to prevent a multiplicity of suits and should receive a liberal construction; that the cross-defendant is in the place of an indemnitor and would be the one actually liable if the plaintiff is successful in the original action; and that the cross-defendant is a necessary party to the original action in order to determine the question of ultimate liability in this one action.