Baldwin Contracting Co. v. Winston Steel Works, Inc.

• Decision Date: 17 August 1965
• Citation: 46 Cal.Rptr. 421,236 Cal.App.2d 565
• Court: California Court of Appeals Court of Appeals
• Parties: BALDWIN CONTRACTING COMPANY, a corporation, Plaintiff and Respondent, v. WINSTON STEEL WORKS, INC., a corporation, Sacramento Erectors, Inc., a corporation, Defendants and Appellants. Civ. 21933.

Page 421

46 Cal.Rptr. 421

236 Cal.App.2d 565

BALDWIN CONTRACTING COMPANY, a corporation, Plaintiff and Respondent, v. WINSTON STEEL WORKS, INC., a corporation, Sacramento Erectors, Inc., a corporation, Defendants and Appellants.

Civ. 21933.

District Court of Appeal, First District, Division 2, California.

Aug. 17, 1965.

Rehearing Denied Sept. 16, 1965.

Hearing Denied Oct. 13, 1965.

O'Connor, Moran, Cohn & Lynch, San Francisco, for appellant Winston Steel Works, Inc.

Donald F. Farbstein, Hession, Robb, Creedon, Hamlin & Kelly, San Mateo, for appellant Sacramento Erectors, Inc.

Bledsoe, Smith, Cathcart, Johnson & Rogers, San Francisco, R. S. Cathcart, San Francisco, of counsel, for respondent.

TAYLOR, Justice.

Defendants, Winston Steel Works, Inc. (hereafter referred to as Winston), and Sacramento Erectors, Inc. (hereafter referred to as Sacramento), construction subcontractors, appeal from a judgment entered on a directed verdict, holding that they are obligated to indemnify the general contractor, plaintiff, Baldwin Construction Company (hereafter referred to as Baldwin), and from the orders denying their motions for a judgment notwithstanding the verdict. ¹ Winston appeals from the order denying its motion for a nonsuit. ² The main questions presented are whether Baldwin was affirmatively negligent, the effect of Winston's alleged indemnity agreements, and Sacramento's liability.

By the instant action, Baldwin sought to recover the amount it expended in defending and settling an action brought by Owen Steele, Sacramento's foreman. Steele was injured on May 17, 1956, when he fell after coming in contact with certain high voltage wires, and in 1957, filed a personal injury action against Baldwin, Pacific Gas and Electric Company, and the owner of the building, Gladding McBean & Company (hereafter referred to as McBean). The judgment in that action, now final, exonerated McBean and awarded Steele $90,000 against Baldwin and Pacific Gas and Electric Company. Baldwin and Pacific Gas and Electric Company settled the judgment for $70,000, of which Baldwin paid $35,000 and expended $11,500 in defending the action.

Baldwin's complaint to recover the total amount from Winston and Sacramento alleged both breach of an express contract of indemnity and a cause of action based on implied indemnity. The trial court directed a verdict in favor of Baldwin against Winston on the basis of the express contract of indemnity and directed the verdict in favor of Baldwin against Sacramento on grounds of noncontractual implied indemnity.

We note preliminarily that in determining whether the court properly granted respondent's motion for a directed verdict, we must view the evidence in the light most favorable to appellants, disregard all conflicts in the evidence, and indulge all reasonable inferences in their favor (Beck v. San Francisco Etc. Sch. Dist., 225 Cal.App.2d 503, 37 Cal.Rptr. 471). This same advantage in viewing the evidence must be extended to respondent in considering whether the court properly denied appellants' motions for a nonsuit and judgment notwithstanding the verdict. A trial court's power to direct a verdict or grant a judgment notwithstanding the verdict is subject to the same limitation as its power to grant a nonsuit (Cain v. Friend, 171 Cal.App.2d 806, 341 P.2d 753.)

The record discloses that in 1955, McBean entered into a written contract with Baldwin for the construction of certain largescale improvements at McBean's ceramics products manufacturing installation in Placer County, California. This contract included the construction of several new outdoor buildings. In 1956, Baldwin subcontracted the construction and installation of one of these buildings, No. 5, to Winston, a structural steel fabricator. Winston, in turn, subcontracted the erection of the building to Sacramento. Winston's contract with Baldwin included provisions holding Baldwin harmless from liability for injury or damages incurred by reason of any act of Winston, its agents or employees.

The site for building No. 5 was chosen by McBean and prepared by Baldwin who laid the concrete foundation floor and anchors for the building. Winston received the specifications for building No. 5 from Baldwin and after manufacturing the steel parts sent them to the chosen site.

Baldwin's superintendent and foreman on the McBean job from September 1955 until its completion several years later was Troy Phillips. The foundation and floor for building No. 5 were put in about a month before the accident in which Steele was injured. At this time, Phillips was aware that the high voltage wires were overhead and would run over building No. 5 when it was erected.

Several days before the accident, Sacramento's field superintendent, Fred Gerdes, arrived to get the steel ready for erection. He observed the high voltage wires and immediately contacted Phillips about them. Fred Gerdes and his brother, Orville Gerdes [Sacramento's foreman in the field], both asked Phillips to turn off the wires because they did not think it was possible to build a barricade. Phillips had just had a similar request from another subcontractor, Palm Iron Works, the steel erection contractor for building No. 4, and had been told by Mr. Kinder of McBean that the wires could not be shut off because they were the main wires of the plant.

According to Fred Gerdes, Phillips told him that the distance of the wires above the proposed building had been measured without indicating who had measured them. He also told Gerdes that they would have a clearance of approximately 13 feet from the highest point of the building and that this was in accord with the safety requirements which specified a minimum of 12 feet of clearance. It was made clear that the 13 feet was computed not from the foundation but from the highest point of the building to the wires. Phillips assured the Gerdes brothers that it was safe and that they could go ahead and erect the building without doing anything about the wires. Phillips either denied or was unable to recall any conversation with the Gerdes brothers but did admit that on the day of the accident, he looked up and estimated to someone at the site that the wire clearance was 14 feet above the structure.

Owen Steele, Sacramento's foreman, had charge of the equipment and all operational details of the job. He received his orders from his immediate superior, Fred Gerdes. Steele had arrived at the site the day before the accident and began to erect the building with his crew. He saw the high tension wires, knew that they could not be shut off, and cautioned his men to be careful. During the erection of the building on the day before the accident, Steele observed Phillips walking around and inspecting the progress of building No. 5. By that evening, the entire outline of the building was completed. Because of the overhead wires, Sacramento had to order and use a different type of crane so that they could erect the building without coming in contact with the wires. Sacramento issued orders to Steele to go ahead and Baldwin was never requested by either Winston or Sacramento to build a protective barricade.

On the morning of the accident, May 17, 1956, Phillips, after inspecting building No. 5, warned Steele and the other iron workers to be very careful about the hot wires above when they worked on top of the building to put in the sheeting for the roof. Phillips admitted that he was aware, prior to Steele's accident, that the wires constituted a danger. About five to ten minutes before the accident, Phillips, from another place on a nearby building, saw Steele standing on top of a rafter of building No. 5 underneath the wires. The record discloses no warning to Steele at that time. The accident occurred when another employee of Sacramento handed Steele a 25 foot iron rake angle to be used to fasten the sheets of corrugated metal to the building. Steele, a six-footer, in the process of turning the rake angle around, struck the overhead tension wires and fell to the floor of the building. The nature and extent of his injuries are not in issue here.

After the accident, at the direction of Phillips, Baldwin's carpenters put up a wooden barricade. Baldwin had the only carpenters on the whole project. All of Sacramento's employees were steel and iron workers. One of the two carpenters who installed the barricade estimated that the wires were about 11 feet above building No. 5 and the other estimated between 10 and 12 feet.

The principal question here is whether there was any substantial evidence that Baldwin, through its agent Phillips, was guilty of active negligence contributing proximately to Steele's injury.

The judgment obtained by Steele against Baldwin in Placer County does not establish Baldwin's active negligence as a matter of law by collateral estoppel. There were no special interrogatories addressed to the jury. The judgment could well have been based on the general contractor's common law duty to afford the subcontractor's employees a safe place to work (Florez v. Groom Development Co., 53 Cal.2d 347, 354, 1 Cal.Rptr. 840, 348 P.2d 200) or on the more stringent statutory liability imposed on the general contractor as an 'employer' under section 6304, et seq. of the Labor Code (Conner v. Utah Constr. & Mining Co., 231 A.C.A. 300, 308, 41 Cal.Rptr. 728; Kuntz v. Del E. Webb Constr. Co., 57 Cal.2d 100, 18 Cal.Rptr. 527, 368 P.2d 127).

If Baldwin's liability to Steele was attributable solely to the failure of its subcontractors in their operations to take the necessary precautionary measures for which the general contractor is also made responsible by operation of law, Baldwin could recover the amount of the Steele judgment from Winston or from Sacramento even in the absence of a hold harmless agreement on the basis of implied indemnification (Weyerhaeuser S.S. Co. v. Nacirema Co., 355 U.S. 563, 568, 78 S.Ct. 438, 2 L.Ed.2d 491; San...