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Thomas v. E-Z Mart Stores11/2/2004
r from neutral to drive. . . In Porter, the dealership's negligence, if any, was so far removed from the causal nexus between its negligence and the instrument manufacturer's negligence, that the Court held that it merely furnished a condition by which the injury was possible and a subsequent act caused the injury.
Johnson v. Hillcrest Health Center, Inc., 2003 OK 16, at n. 31, 70 P.3d 811, 820. An examination of Porter must include the fact that it was an indemnity suit; that is, Porter involved the vindication of a right to equitable indemnity. This is important because the allocation of ultimate liability may be changed to a different party for the purpose of indemnity.
In Porter, Grayson Porter, an employee of Sun Electric was on the premises of a car dealership, Norton-Stuart, and while Porter was providing services to customers of the car dealership he caused an injury to one them, Frank Smith. We explained:
So far as the relationships of the parties are concerned, it is clear that as to Smith, Porter, whose actual negligence caused the accident, was the agent, servant or employee of Norton-Stuart. His presence on the premises was authorized by Norton-Stuart and he was doing the work which Norton-Stuart had offered to Smith. At the time of the accident, he was working on the Smith automobile at the express direction of the Norton-Stuart shop foreman. So far as Smith was concerned, the right of control over Porter rested with Norton-Stuart. Norton-Stuart was therefore liable to Smith under the doctrine of respondeat superior.
However, as between Norton-Stuart and Sun Electric, Porter was clearly the agent, servant or employee of Sun Electric. He was present for the purpose of demonstrating Sun Electric equipment, and attempting to sell it. This agency was admitted by Sun Electric in its pleadings in the indemnity action. Being a corporation, Sun Electric could act only through its agents, servants or employees, and therefore the act of Porter was literally the act of Sun Electric. If, for instance, Smith had not been on the premises when Porter caused the automobile to lurch forward, and the injury had been confined to damage to the property of Norton-Stuart, there can be no doubt that Sun Electric would have been liable to Norton-Stuart under the doctrine of respondeat superior.
We hold that under the facts in this case, Norton-Stuart has a right to indemnity from Sun Electric.
Porter, 405 P.2d at 114 - 115, (emphasis in original). We said that the landowner/occupier, Norton-Stuart (car dealership), was liable to Smith, an invitee, for Porter's act. The car dealership exercised control over Porter and its premises at the time Smith was injured. On the other hand, as between the car dealership and Sun Electric, Porter's act was that of Sun Electric and not that of the car dealership.
E-Z Mart also relied on Employers Casualty Company v. Ideal Cement Company, 1973 OK 59, 511 P.2d 1090. In this case Employers Casualty brought an action seeking indemnification for a settlement it paid to an injured person, Arvel Davis, for injuries caused by Ideal Cement on the premises of Dolese's concrete plant. The Court described joint tortfeasors, and stated in dicta that "Dolese and defendants may have been jointly liable for the injuries sustained." Id. 511 P.2d at 1092. The court also cited Porter and discussed contribution between tortfeasors and when one defendant is constructively liable pursuant to the rule of respondeat superior. Id.
Indemnity is a right possessed by one who discharges a duty owed by that party, but which, as between that party and another, should have been discharged by the other. Porter v.
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