Courtell v. McEachen

• Decision Date: 02 February 1959
• Citation: 51 Cal.2d 448,334 P.2d 870
• Court: California Supreme Court
• Parties: ., Respondent, v. Hazel M. McEACHEN et al., Appellants. L. A. 24383. Supreme Court of California

Page 870

334 P.2d 870

51 Cal.2d 448

Donna Jean COURTELL, a Minor, etc., Respondent, v. Hazel M. McEACHEN et al., Appellants.

L. A. 24383.

Supreme Court of California

Feb. 2, 1959.

As Modified on Denial of Rehearing March 4, 1959.

Murchison & Cumming, R. Bruce Murchison and Warren D. Allen, Los Angeles, for appellants.

Frank W. Swann, Jr., Beverly Hills, for respondent.

GIBSON, Chief Justice.

Defendants, Mrs. McEachen and the administrator of the estate of her deceased husband, appeal from a judgment in the amount of $50,000 recovered by plaintiff as damages for severe burns she sustained while playing on a lot owned by the McEachens in joint tenancy.

A house had been torn down on the lot where the accident happened, and early in 1953 Mr. McEachen, who managed the real property of the couple, engaged Harry Plummer to burn the lumber and debris, which covered the lot. Plummer, an evening-shift worker in a tire factory, was a tenant of the McEachens, renting a house next to the lot, and he agreed to do the burning for one month's free rent. McEachen told him that he could burn a little each day between 9:00 a. m. and 10:30 or 11:00 a. m., and for several mornings after February 1 he burned some debris at approximately the center of the lot. On February 11, the day of the accident, Plummer did some burning in this manner and left the lot about 11:00 a. m., returning to his home.

About 2:30 p. m. on February 11, plaintiff, a girl five years and nine months old, was walking home from school. Several children, among them two daughters and a son of Plummer, were playing on the lot, and one of them called to plaintiff to join them. A woman who saw the accident from her home nearby testified that plaintiff walked to the center of the lot, jumped over something and 'stooped down' and that, when plaintiff got up, the back of her dress was on fire. The witness had observed the lot from the time that Plummer started the fire in the morning, and she stated that, when the accident happened, the fire was still smoldering, although there were no flames.

The court determined that plaintiff was capable of being a witness, and she testified that her dress caught fire when, having gone to the center of the lot and having jumped over a pile of wood, she squatted down to pick up a stick. She further said that there were no flames on the lot, that there was a little smoke in the center and embers on the ground, including a six-inch pile under some wood, that she did not know embers could burn her or set her dress on fire, and that she knew of fire only from her mother's stove.

According to one of Plummer's daughter, her brother had started a fire near the front of the lot, and, when plaintiff came onto the lot, the children were playing with that fire, which was about 15 inches high. Both plaintiff and the witness jumped over the fire 'a little bit over the side.' Plummer's son testified that shortly before the accident the children were playing with a fire he had lighted. Neither of the two Plummer children saw when or how plaintiff's dress caught fire.

Plummer testified that, before leaving the lot on the morning of February 11, he put out the fire by wetting it with a hose, raking it apart and pouring buckets of water over it, and that, when he came out of his house after the accident, he saw a fire of newspapers or cardboard at approximately the place where he had been burning earlier but did not see any 'red coals.'

At the trial Mrs. McEachen denied knowing that children were playing on the lot prior to the accident, but it was shown that she had made a statement to the contrary in her deposition. According to Plummer, he knew that his children and others played on the lot after the house had been torn down, and Mr. McEachen had visited him on some occasions when the children were playing there.

Defendants first complain of an instruction given by the court on its own motion that there was no contributory negligence on the part of plaintiff. There are four theories which could warrant the giving of such an instruction: (1) that a child of the age of plaintiff is conclusively presumed to be incapable of contributory negligence; (2) that the evidence established that this particular plaintiff was incapable of such negligence with respect to the accident in question; (3) that it was proved, as a matter of law, that plaintiff, while capable of negligence, had exercised due care; or (4) that, although plaintiff had been negligent, her lack of care could not have contributed to her injury. None of these thereis, however, can justify the giving of the instruction in this case.

The questions whether a child was capable of exercising care to avoid the particular danger encountered and whether, if so, the child failed to exercise due care, therby contributing to the injury, are normally for the trier of fact to determine. Cahill v. E. B. & A. L. Stone Co., 167 Cal. 126, 139, 138 P. 712. In keeping with this rule courts have rejected the theory that a child of plaintiff's age, namely, between five and six, is incapable of contributory negligence as a matter of law. Smith v. Harger, 84 Cal.App.2d 361, 370, 191 P.2d 25; Carrillo v. Helms Bakeries, 6 Cal.App.2d 299, 304, 44 P.2d 604. The evidence was conflicting as to whether plaintiff's dress caught fire because she played near flames or because she squatted down on embers, and a determination of this conflict was obviously essential in order to resolve the questions of plaintiff's capacity to exercise care for her safety and of her contributory negligence. Accordingly, those questions could not properly have been decided as matters of law.

Plaintiff appears to take the position that, in cases involving injury to young children, the trial judge may determine the issue of contributory negligence even though questions of fact are presented. She relies on a statement in Mayne v. San Diego Electric Railway Co., 179 Cal. 173, 177, 175 P. 690, 692, that 'as a rule courts upon appeal have not interfered with the discretion of trial courts in referring or in refusing to refer to juries the question as to whether the contributory negligence of children of to age of 14 years or under was such as to prevent their recovery * * *.' In that case, however, the trial judge had not decided the issue of contributory negligence but had submitted it to the jury. Thus, the case on its facts does not support plaintiff's position, and the quoted language should not be construed in the manner urged. Contributory negligence is a matter bearing directly upon the outcome of a suit, and, where, as in the present case, the facts are in dispute, there is no retional basis for permitting the judge, rather than the jury, to resolve that matter. So far as has been called to our attention, the existence of such an exceptional power is not recognized anywhere.

The instruction that there was no contributory negligence on the part of plaintiff erroneously deprived defendants of a defense upon which they relied. Although plaintiff has not raised the point, it has been suggested that the error is not prejudicial because, assertedly, the defense was so defectively pleaded that it must be treated as not properly in the case. However, there is nothing in the record to show, and plaintiff does not now claim, that the defect in the pleadings misled or hindred her in any way. Having sought unsuccessfully to strike the defense from the answer, plaintiff was aware that the matter was being treated as subject to trial, and she introduced evidence which, while it may also have been material to her case in chief, undoubtedly tended to rebut the claim of contributory negligence, for example, her testimony that there were no flames on the lot, that she did not know embers could burn her or set her dress on fire, and that she knew of fire only from her mother's stove. On appeal she has not seen fit to mention the defect and argues only that the instruction given by the court was proper under the evidence. In these circumstances we are not justified in disregarding the effect of the erroneous instruction, and, since the error was clearly prejudicial to defendants, the judgment must be reversed.

There are several other problems which should be discussed in order to guide the trial court in the event of a new trial. One of these concerns the effect, if any, upon defendants' liability of the circumstance that Plummer, rather than defendants, actually did not buring. The determination of whether Plummer was an independent contractor or an employee depends upon a consideration of various factors, the most important of which is the degree of control retained by the McEachens. See Empire Star Mines Co. v. Cal.Emp. Emp. Comm., 28 Cal.2d 33, 43-44, 168 P.2d 686. The evidence now before us is inconclusive in regard to this factor since it appears that McEachen gave only a few instructions and did not supervise the burning but that Plummer would have followed additional instructions had they been given. Other pertinent circumstances are also conflicting in their effect, for example, Plummer was paid by the job, rather than by the hour, but burning was not his usual occupation. On such a record, the question as to whether Plummer was an employee or an independent contractor is one of fact.

Obviously, if Plummer was an employee, defendants would be liable for any conduct on his part which, in view of his knowledge regarding use of the lot by children, would constitute a lack of due care. We do not mean to suggest, however, that there could be no liability if it should be found that Plummer was an independent contractor. The rule that an employer is not liable for an independent contractor's negligence is subject to numerous exceptions, including the ones set forth in sections 413 and 416 of the Restatement of Torts. ¹ Potter v. Empress Theatre Co., 91 Cal.App.2d 4, 10-11, 204 P.2d 120; see Snyder v. Southern Cal. Edison Co., 44...