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CITY AND COUNTY OF SAN FRANCISCO, a municipal corporation, Plaintiff and Appellant, v. HO SING and Ho Lum Shee, Defendants and Respondents.*
Plaintiff City and County of San Francisco brought this action against the defendants to recover by way of indemnity the amount which plaintiff had been compelled to pay to a pedestrian for injuries received by him when he tripped and fell over a defective skylight in the sidewalk in front of premises owned by the defendants. The skylight furnished light to a sub-sidewalk basement in said premises and had been originally constructed by defendants' predecessor in title. The pedestrian recovered judgment for $15,000 against both plaintiff and defendants, and plaintiff paid $5,000 and defendants $10,000 in satisfaction of such judgment.
The trial court sustained a demurrer without leave to amend to a complaint alleging these facts and plaintiff appeals from the judgment which followed.
The question which was expressly left open in Peters v. City and County of San Francisco, 41 Cal.2d 419, 430–431, 260 P.2d 55, is here squarely presented: Where an adjoining property owner for the exclusive benefit of his own property places in a public street or sidewalk some artificial structure and a city is compelled to pay compensation in damages to a member of the public injured thereby may the city recover the amount so paid from the property owner by way of indemnity?
We need go no further than the Peters case, above cited, for the rule that in such circumstances the city and the property owner are jointly liable to a member of the public injured as a result of negligence in the construction or maintenance of such a structure. The property owner is liable because ‘the dangerous condition * * * was created by him or his predecessors in title for the benefit of the private property to serve a use apart from the ordinary use for which sidewalks are designed.’ Peters v. City and County of San Francisco, supra, 41 Cal.2d at page 428, 260 P.2d at page 61. ‘[T]he liability of the city depends upon a showing that it had notice of the dangerous condition and failed to remedy it within a reasonable time.’ Id. ‘With regard to persons who are injured by such a condition, the city and the landowner are joint or concurrent tort-feasors; each is directly liable for his own wrong and each may be held liable for the entire damage suffered.’ Id., 41 Cal.2d at page 429, 260 P.2d at page 61.
As between the landowner and the city, however, the courts throughout the United States are in agreement that the city has a right over against the landowner to be indemnified by him for the amount which it is compelled to pay to the party injured by the dangerous or defective condition of the work installed in the street by the landowner for the benefit of his own property. Washington Gaslight Co. v. District of Columbia, 161 U.S. 316, 16 S.Ct. 564, 40 L.Ed. 712; Chicago City v. Robbins, 2 Black 418, 67 U.S. 418, 17 L.Ed. 298; Robbins v. Chicago City, 4 Wall. 657, 71 U.S. 657, 18 L.Ed. 427; Inhabitants of Lowell v. Boston and Lowell Railroad Corporation, 23 Pick. (Mass.) 24; Village of Port Jervis v. First National Bank, 96 N.Y. 550; Trustees of Village of Canandaigua v. Foster, 156 N.Y. 354, 50 N.E. 971, 41 L.R.A. 554; City of New York v. Corn, 133 App.Div. 1, 117 N.Y.S. 514; Town of Waterbury v. Waterbury Traction Co., 74 Conn. 152, 50 A. 3; City of Corsicana v. Tobin, 23 Tex.Civ.App. 492, 57 S.W. 319; City of Des Moines v. Des Moines Water Co., 188 Iowa 24, 175 N.W. 821; City of Pawtucket v. Bray, 20 R.I. 17, 37 A. 1; McDaneld v. Logi, 143 Ill. 487, 32 N.E. 423; Wickwire v. Town of Angola, 4 Ind.App. 253, 30 N.E. 917; City of Topeka v. Central Sash & Door Co., 97 Kan. 49, 154 P. 232; City of Louisville v. Nicholls, 158 Ky. 516, 165 S.W. 660; City of Wabasha v. Southworth, 54 Minn. 79, 55 N.W. 818; City of Omaha v. Philadelphia Mortgage & Trust Co., 88 Neb. 519, 129 N.W. 996; Baltimore & O. R. Co. v. Howard County Com'rs, 111 Md. 176, 73 A. 656, 40 L.R.A.,N.S., 1172; Hart Tp. v. Noret, 191 Mich. 427, 158 N.W. 17, L.R.A.1916F, 83; Kilroy v. City of St. Louis, 242 Mo. 79, 145 S.W. 769; City of Springfield v. Clement, 205 Mo.App. 114, 225 S.W. 120; Gregg v. City of Wilmington, 155 N.C. 18, 70 S.E. 1070; City of Astoria v. Astoria & C. R. Co., 67 Or. 538, 136 P. 645, 49 L.R.A.,N.S., 404; Hillyer v. City of East Cleveland, 155 Ohio St. 552, 99 N.E.2d 772; Byne v. Mayor, etc., of City of Americus, 6 Ga.App. 48, 64 S.E. 285; City of Seattle v. Puget Sound Imp. Co., 47 Wash. 22, 91 P. 255, 12 L.R.A.,N.S., 949; Salt Lake City v. Schubach, 108 Utah 266, 159 P.2d 149, 160 A.L.R. 809; Prosser on Torts, 2d ed., § 46, p. 250; 1 Harper & James, The Law of Torts, § 10.2, p. 724; 1 Cooley on Torts, 4th ed., § 89, p. 296; 19 McQuillin, Municipal Corporations, 3rd ed., § 54.19, pp. 91–94; 4 Dillon, Municipal Corporations, 5th ed., § 1728, p. 3032; 42 C.J.S. Indemnity §§ 22, 27 b, pp. 598, 609. The question has not been passed upon in California (as we have noted it was expressly left open in Peters v. City and County of San Francisco, supra, 41 Cal.2d 419, 260 P.2d 55), but with such unanimity of decision in the other courts of this country we must accept it as the prevailing rule at common law (Callet v. Alioto, 210 Cal. 65, 68–69, 290 P. 438; Strong v. Shatto, 45 Cal.App. 29, 33, 187 P. 159). In the absence of some conflict with our constitutional or statutory law the common law is the rule of decision in the courts of this state. Civil Code § 22.2; Cole v. Rush, 45 Cal.2d 345, 355, 289 P.2d 450, 54 A.L.R.2d 1137.
We might well end the discussion here with the conclusion that the common law is so well settled, as indicated by the uniform holding of the courts of other jurisdictions on the subject, that it is our duty to follow the common law principle as so consistently declared.
Respondents, however, argue strenuously that because, as they contend, these decisions are based upon reasoning inconsistent with the decisions of our courts this uniform current of decision should not be followed in this state. Some of the decisions, as respondents point out, say that the liability of the landowner is primary and that of the city only secondary but, say respondents, in Peters, supra, 41 Cal.2d 419, 260 P.2d 55, our Supreme Court held that both are primarily liable to the injured party. But it was pointed out by the Supreme Court in that case that ‘[t]he opinions in those cases, however, recognize that the city has an independent duty to correct dangerous conditions of which it has notice, regardless of who created them, and the term ‘secondary’ is not used therein to indicate that the city is merely liable vicariously for the negligence of the landowner. Instead, it appears that the term is used as a means of indicating that, in the jurisdiction where the case arose, a city has a right to be indemnified by a landowner in the event it is compelled to pay damages resulting from a dangerous condition he created or maintained and for which he would be liable to pedestrians.' 41 Cal.2d at page 430, 260 P.2d at page 62. The court added at pages 430–431 of 41 Cal.2d, at page 62 of 260 P.2d: ‘Even if such a right to contribution or indemnity were recognized, however, it would not mean, as asserted by the city, that its liability to pedestrians is merely dependent or derivative from that of the landowner and not joint or direct. As noted above, the rule against contribution between joint tort-feasors admits of some exceptions, and a right of indemnification may arise as a result of contract or equitable considerations and is not restricted to situations involving a wholly vicarious liability, such as where a master has paid a judgment for damages resulting from the voluntary act of his servant.’
As pointed out by our Supreme Court in the passage just quoted the use of the words ‘primary’ and ‘secondary’ in these decisions is not intended by the courts to mean that as to the injured third party the landowner and the city are not both primarily and independently liable, but rather that as between the landowner and the city the landowner's duty is primary, or to put it in another fashion that the landowner owes a duty to the city as well as to the users of the street to keep the work which he has installed in the street in a safe condition. Other cases express the same idea in another manner by saying that the city and the landowner are not in pari delicto. (E.g., Washington Gaslight Co. v. District of Columbia, supra, 161 U.S. 316, 327–328, 16 S.Ct. 564; Inhabitants of Lowell v. Boston and Lowell Railroad Corporation, supra, 23 Pick. (Mass.) 24, 32. Here again the cases rest on the basis that while both are equally liable to the injured party, as between themselves the landowner is the more at fault in that he violates a duty laid upon him toward the city as well as to the users of the street to take proper care of the installation which he has placed in the street for his own private benefit.
The matter is clearly stated in City of Spokane v. Crane Co., 98 Wash. 49, 167 P. 63, 64 (quoted in Salt Lake City v. Schubach, supra, 159 P.2d 149, 155): ‘But the person who actually created or maintained for his own use the dangerous condition is, as between the city and himself, still primarily liable on elementary principles * * * simply because the dangerous condition was the result of his own personal negligence. As between him and the city, his was the active negligence, while that of the city was merely passive.’
The true basis of the liability on the landowner to indemnify the city is found in the relation between the landowner and the city, as distinguished from the relation between both and an injured user of the street, and when the courts use the various expressions: ‘primary’ and ‘secondary,’ ‘active’ and ‘passive,’ ‘not in pari delicto,’ they do so with the relation between the landowner and the city in mind, and as indicating that the landowner owes a duty to the city to keep the installation free from danger while the city owes no such duty to the landowner; although both owe that duty to the public.
The position is made clear by those courts which point out that in making a secondary use of the street for the benefit of his own property, as distinguished from the primary use for public passage, the landowner is exercising a privilege to which he is not entitled as a legal right and acts under a license, express or implied, from the city and that an implied condition of that license is that the landowner will exercise due care for the safety of the public. Village of Port Jervis v. First Nat. Bank, supra, 96 N.Y. 550, 556–557; Chicago City v. Robbins, supra, 2 Black 418, 425, 67 U.S. 418, 425, 17 L.Ed. 298; City of Des Moines v. Des Moines Water Co., supra, 175 N.W. 821, 823, 825; Salt Lake City v. Schubach, supra, 159 P.2d 149, 152, 157; City of Omaha v. Philadelphia Mortgage & Trust Co., supra, 129 N.W. 996; City of Wabasha v. Southworth, supra, 55 N.W. 818, 819; City of Ft. Scott v. Pen Lubric Oil Co., 122 Kan. 369, 252 P. 268, 269; cf. Jessen v. Sweigert, 66 Cal. 182, 183, 4 P. 1188.
We find nothing inconsistent between our decisions that one joint tort feasor may not have contribution from another joint tort feasor at common law (Forsythe v. Los Angeles Ry. Co., 149 Cal. 569, 87 P. 24; Dow v. Sunset Telephone & Telegraph Co., 162 Cal. 136, 121 P. 379; Adams v. White Bus Line, 184 Cal. 710, 195 P. 389) and the rule that one who makes a special use of the street for his private benefit is impliedly bound to indemnify the city for loss occasioned to it by his negligence in such private use. Indemnity is distinguishable from contribution in that the former shifts the entire loss to the one bound to indemnify (Prosser on Torts, 2d ed., § 46, p. 249) and it must, in every case, depend upon some special relation between the two tort feasors. The recently adopted contribution sections of the Code of Civil Procedure recognize the distinction, it being provided in section 875(f): ‘This title shall not impair any right of indemnity under existing law, and where one tort feasor judgment debtor is entitled to indemnity from another there shall be no right of contribution between them.’
If there is anything inconsistent with this conclusion in Guy F. Atkinson Co. v. Merritt, Chapman & Scott Corp., D.C., 141 F.Supp. 833, we are not bound by that decision. The duty rests on the courts of this State to determine California law. It may be added that the United States District Judge who wrote that opinion did not have before him the precise question presented to us in this case.
Respondents further argue that if a city is allowed indemnity against the property owner it will defeat the purpose of the Legislature in enacting the Public Liability Act. Government Code, § 53051. We fail to see the force of this argument. The city's liability to an injured member of the public is not affected in any way by holding that the city has a right over for indemnity against the property-owner in this type of case.
We can see no valid reason to disregard the host of decisions from other jurisdictions on this subject and thereby to set this State apart as denying a right of indemnity to the city which practically all other courts in the Union have allowed.
Judgment reversed with directions to the trial court to overrule the demurrer.
DOOLING, Justice.
KAUFMAN, P. J., and DRAPER, J., concur.
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Docket No: Civ. 17545.
Decided: April 16, 1958
Court: District Court of Appeal, First District, Division 2, California.
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