San Martin Vineyards v. R. & W. Floor Coverings, Inc.

This appeal is from a judgment in favor of the respondent following an order sustaining a demurrer without leave to amend. Accepting the allegations of the complaint as true, the facts may be stated as follows:

About 5 p. m. on July 24,1959, one Olsen was injured when the door allegedly fell on him and he died as the result of the injuries so sustained. His heirs then filed an action for wrongful death in Santa Clara County, naming appellants as some of the defendants.

Appellants filed this action for declaratory relief, alleging that a dispute existed between the parties and that if appellants have any liability to the plaintiffs in the Olsen action, appellants are entitled to indemnity and reimbursement of costs and expenses for the defense of the Olsen action from the respondent, pursuant to the above-mentioned promise to repair the door.

Respondent demurred and moved to strike the complaint on the ground that the complaint failed to allege facts sufficient to state a cause of action, that appellants’ action was premature, and that the attorney fees and costs are not re *679 coverable. The trial court did not rule on the motion to strike but sustained the demurrer without…