Anheuser-Busch, Inc. v. Starley , 28 Cal. 2d 347 ( 1946 )

CARTER, J.

Plaintiff appeals from a judgment for defendant entered on a directed verdict.

Denver-Chieago Trucking Company, -hereinafter referred to as carrier, was engaged as a common carrier, in the transportation by truck of personal property owned by plaintiff. In the course thereof defendant’s car collided with the carrier’s truck containing the property, resulting in a partial destruction of the property. Prior to the commencement of this action the carrier paid plaintiff’s claim for the damage to the property presumably under the law providing: “Unless the consignor accompanies the freight and retains exclusive control thereof, an inland common carrier of property is liable, from the time that he accepts until he relieves himself from liability pursuant to sections two thousand one hundred and eighteen to two thousand one hundred and twenty-two, for the loss or injury thereof from any cause whatever, except: 1. An inherent defect, vice, or weakness, or a spontaneous action, of the property itself; 2. The act of a public enemy of the United States, or of this state; 3. The act of the law; or, 4. Any irresistible superhuman cause.” (Civ. Code, §2194.) Evidence was adduced that the claim was paid without reference to any negligence or tortious conduct on the part of the carrier. No release was given to the carrier by plaintiff.

In the instant action plaintiff seeks to recover damages to its property flowing from the collision, asserting that defendant’s negligence was the cause of it. Defendant’s motion for a directed verdict was granted solely upon the ground that plaintiff had been fully compensated for its loss by the carrier and that it was not a proper party plaintiff in this action.

Where a person suffers personal injury or property damage by reason of the wrongful act of another, an action against the wrongdoer for the damages suffered is not precluded nor is the amount of the damages reduced by the receipt by him of payment for his loss from a source wholly independent of the wrongdoer. (See Peri v. Los Angeles Junction Ry., 22 Cal.2d 111 [137 P.2d 441]; White v. Mary Ann, 6 Cal. 462 [65 Am.Dec. 523]; Lebet v. Cappobiancho, 38 Cal.App.2d Supp. 771 [102 P.2d 1109]; Inglewood Park M. Co. v. Ferguson, 9 Cal.App.2d 217 [48 P.2d 305]; Loggie v. Interstate Transit Co., 108 Cal.App. 165 [291 P. 618]; Clark v. Burns Hammam Baths, 71 Cal.App. 571 [236 P. 152]; 18 A.L.R. 678; 22 Id. 1558; 81 Id. 320; 15 Am.Jur., Damages, §§198-202; 25 C.J.S., Damages, §99.) The rule has been applied where the independent source is pension systems or charity. The most typical case is where the person suffering the damage has procured insurance protecting him against the loss, to which the wrongdoer did not contribute in procuring, and his insurer pays him for the loss suffered. In the insurance cases its application is not prevented by the circumstance that the insurer is subrogated to the rights of the insured person suffering the damage as against the tort feasor. (See White v. Mary Ann, supra; Lebet v. Cappobiancho, supra; Clark v. Burns Hammam Baths, supra; 15 Am.Jur., Damages, § 201.) The analogy between that rule and the instant case is close. The liability of the carrier to the owner for damage to property in transit under the contract to transport is practically absolute. The few exceptions are stated in the statutory law. (Civ. Code, § 2194, above quoted.) His liability is that of a limited insurer whether it be said to be contractual (the statute forming part of the contract), statutory or in tort. (See Franklin v. Southern Pac. Co., 203 Cal. 680 [265 P. 936, 59 A.L.R. 118]; Michalitschke Bros. & Co. v. Wells, Fargo & Co., 118 Cal. 683 [50 P. 847]; Scammon v. Wells, Fargo & Co., 84 Cal. 311 [24 P. 284] ; Bohannan v. Hammond, 42 Cal. 227; American Fruit Distributors v. Hines, 55 Cal.App. 377 [203 P. 821].) The recovery of the loss by the owner from the carrier comes from a source wholly independent of the tort feasor whose negligence caused the loss. Therefore under this rule plaintiff’s action is not barred unless there are some other factors which compel it.

It is suggested that if plaintiff-shipper is permitted to recover from defendant tort feasor, the latter might be subsequently subjected to a like recovery by the carrier. This the law will not permit. We may look at the law of bailments for an analogy. Assuming the carrier would have an action against the tort feasor, and treating it as a bailee for the full value of the property destroyed by the tort feasor, a previous recovery by the shipper from the tort feasor would be a bar to such action except to the extent the action was for damage to the special interest in the property of the carrier-bailee, and, conversely, recovery from the tort feasor by the carrier-bailee of the full value of the property would be a bar to a subsequent action by the shipper-bailor except to the extent the action was for injury special to the bailor. (Baggett v. McCormack, 73 Miss. 552 [19 So. 89, 55 Am.St.Rep. 554]; Central R. Co. of New Jersey v. Bayway Refining Co., 81 N.J.L. 456 [79 A. 292, Ann.Cas. 1912D 77]; Illinois Cent. R. Co. v. Sims, 77 Miss. 325 [27 So. 527, 49 L.R.A. 322]; Terry v. Pennsylvania R. Co., 35 Del. 1 [156 A. 787] ; Masterson v. International & G. N. Ry. Co. (Tex.Civ.App.) 55 S.W. 577; 34 C.J. 850-851; 6 Am.Jur., Bailments, § 358.) We are speaking here of actions against the tort feasor as distinguished from payment for the loss between the shipper and the carrier. If the carrier would have such an action by reason of the principle of subrogation, the result is the same. At least where the carrier-subrogee has notice of the action by the shipper-subrogor against the wrongdoer the satisfaction of a judgment obtained against the wrongdoer by the subrogor is a bar to an action by the subrogee against the tort feasor. (Lebet v. Cappobiancho, 38 Cal.App.2dSupp. 771 [102 P.2d 1109] ; Kidd v. Hillman, 14 Cal.App,2d 507 [58 P.2d 662]; Illinois Cent. R. Co. v. Hicklin, 131 Ky. 624 [115 S.W. 752, 23 L.R.A. N. S. 870] ; Fidelity Ins. Co. v. Atlantic Coast Line R. Co., 165 N.C. 136 [80 S.E. 1069] ; Moltz v. Sherwood Bros, 116 Pa. Super. 231 [176 A. 842]; 140 A.L.R. 1241.) The theory is that there are no longer any rights in the subrogor to which the subrogee may be subrogated.

The contention that the payment for the loss by the carrier to the plaintiff is a discharge of one joint tort feasor which discharges the other cannot be sustained. We have seen that the undisputed evidence shows that the payment was not based on any tortious liability. The carrier’s liability was absolute and not dependent upon any fault on its part. It was a discharge of a liability independent of any tort liability and not arising from the same basis as the liability of defendant which is based on her tortious conduct, negligence.

A difficult question is presented when we come to the issue of whether or not defendant tort feasor may rely upon the defense of the contributory negligence of the carrier in an action by the plaintiff, shipper-owner. If the carrier was bringing the action against the tort feasor after having paid the shipper-owner the loss suffered by it, contributory negligence of the carrier would be a good defense. (Rest., Restitution, § 94.) Prom that premise it is argued that if the shipper is permitted to recover in an action by it from the wrongdoer without being required to meet the defense of contributory negligence of the carrier, the latter will wholly avoid meeting that issue to its unjust advantage by recovery from the shipper after the latter has recovered from the defendant tort feasor. It has been held that the contributory negligence of the carrier may not be imputed to the shipper in the latter’s action against the tort feasor for his wrongful destruction of the goods, or in other words, that contributory negligence of the carrier is no defense in such an action. (Bower v. Union Pac. R. Co., 106 Kan. 404 [188 P. 420].) But in a case where the carrier has paid the shipper-owner the loss suffered, we believe the more just rule to be that contributory negligence of the carrier is a defense. Otherwise the tort feasor would be deprived of his defense of contributory negligence which he would have against the carrier. The latter should not be enabled to escape that defense by the method above mentioned. If the defense were not allowed, it might be said that the carrier, because of its contributory negligence could not recover from the shipper after it had paid the shipper and the latter had recovered from the tort feasor. That would permit double recovery by the shipper which is not favored.

The foregoing discussion also answers the contention that plaintiff shipper is not the real party in interest. The general test of such a party is: “It [Code of Civ. Proe., sec. 307] is to save a defendant, against whom a judgment may be obtained, from further harassment or vexation at the hands of other claimants to the same demand. It is to prevent a claimant from making a simulated transfer, and thus defeating any just counterclaim or setoff which defendant would have to the demand if pressed by the real owner. But where the plaintiff shows such a title as that a judgment upon it satisfied by defendant will protect him from future annoyance or loss, and where, as against the party suing, defendant can urge any defenses he could make against the real owner, then there is an end of the defendant’s concern and with it of his right to object; for, so far as he is interested, the action is being presented in the name of the real party in interest.” (Giselman v. Starr, 106 Cal. 651, 657 [40 P. 8].) As we have seen, such protection is afforded in the case at bar.

The judgment is reversed.

Shenk, J., Edmonds, J., Schauer, J., and Spence, J., concurred.