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01/06/76 PROVENCAL v. PARKER

January 6, 1976

PROVENCAL
v.
PARKER



Appeal from Oakland, William R. Beasley, J.

V. J. Brennan, P. J., and Bashara and J. H. Gillis, JJ. V. J. Brennan, P. J., concurred. J. H. Gillis, J. (dissenting).

SYLLABUS BY THE COURT

Opinion of the Court

1. Indemnity -- Equity -- Restitution.

Indemnification rests upon the equitable principle of a right to restitution; a person may have indemnity where the wrongful act of another results in liability being imposed on the person seeking indemnity.

2. Indemnity -- Active Negligence -- Pleading.

A party seeking indemnity must plead and prove freedom on his part from personal fault; the party must be free from active or causal negligence.

3. Indemnity -- Torts -- Joint Tortfeasors.

There is no right of indemnification between actual joint tortfeasors or tortfeasors in pari delicto.

4. Indemnity -- Active Negligence.

A claim for indemnity will lie only against a party guilty of active negligence.

5. Indemnity -- Active Negligence -- Violation of Duty -- Primary Cause.

A claim for indemnity against a party guilty of active negligence arises where two parties are liable to an injured person, but the injury results from a violation by one of the duty which he owes to the injured person; as between the two tortfeasors the act or omission of the one from whom indemnity is sought must be the primary cause of the injury.

6. Automobiles -- Owner's Liability Statute -- Passive Tortfeasors -- Statutes.

A party whose liability is predicated on the owner's liability statute is a passive tortfeasor ...


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