Cravens v. Kurtz, Argonaut Ins. Co., Intervenor

• Decision Date: 14 December 1962
• Court: California Court of Appeals Court of Appeals
• Parties: Wesley Ray CRAVENS, Plaintiff and Appellant, v. Bob KURTZ et al., Defendants and Respondents, Argonaut Insurance Company, Plaintiff in Intervention and Appellant. Civ. 10232.

Page 802

26 Cal.Rptr. 802

210 Cal.App.2d 810

Wesley Ray CRAVENS, Plaintiff and Appellant, v. Bob KURTZ et al., Defendants and Respondents, Argonaut Insurance Company, Plaintiff in Intervention and Appellant.

Civ. 10232.

District Court of Appeal, Third District, California.

Dec. 14, 1962.

Rehearing Denied Jan. 9, 1963.

Hearing Denied Feb. 6, 1963

P. J. Barceloux, Burton J. Goldstein, Goldstein, Barceloux & Goldstein, Chico, for appellant.

Partridge, O'Connell, Partridge & Fall, San Francisco, and John A. Spann, Redding, for respondents.

Hanna & Brophy, San Francisco, for Argonaut Ins. Co.

SCHOTTKY, Acting Presiding Justice.

Wesley Ray Cravens and Argonaut Insurance Company, plaintiff in intervention, appeal from a judgment of nonsuit in favor of Bob Kurtz and from a judgment on the merits in favor of Fred Dohle in an action brought by Cravens to recover for personal injuries.

It appears from the record that Ray Cravens, plaintiff, was employed as an equipment operator by Fredrickson & Watson Construction Company. His immediate foreman was Fred Dohle, the superintendent in charge of the project on which Cravens was working. On the day of the accident Cravens was working as a 'sheep's foot tamper operator.' To do this job he operated a D-8 Caterillar tractor. At the end of his shift Cravens was instructed by Dohle to use the tractor to push brush which consisted of tree stumps and limbs of varied sizes up to, according to some testimony, 18 feet in length. While Cravens was performing this task, one of the tree stumps was caught by the blade on the tractor and flipped up and arced down on plaintiff's left arm which he had thrown up to protect himself. The arm was crushed against the armrest on the tractor. Serious injuries were incurred and as a result Cravens' lower arm was amputated.

Cravens contends that the operation was governed by subdivision (b), section 3403, title 8 of the California Administrative Code (General Industry Safety Orders) which reads: 'Every tractor which is subjected to the hazards of falling trees, sidewinders, brush and limbs shall be equipped with a canopy guard designed, constructed and installed for the purpose of protecting the operator against such hazards. This canopy guard shall be strongly constructed to afford adequate protection. * * *'

Cravens based his cause of action upon the theory that defendants were negligent in failing to provide the tractor with a canopy which he asserted would have prevented the injury to him.

Argonaut Insurance Company the workmen's compensation carrier, alleging itself to be a necessary and proper party to the action, intervened as a plaintiff to recover medical payments and other workmen's compensation benefits paid to Cravens on account of his injury if Cravens were successful in his suit.

The first contention urged by appellant is that the court erred in granting the nonsuit in favor of Kurtz. We have concluded that this contention must be sustained.

The record shows the following testimony by Kurtz: 'Q. Who in the Fredrickson & Watson firm was responsible for safety of the men? A. I would say that everybody in Fredrickson & Watson's employ, including the officers of the company, were responsible for the safety of the men. We all worked that way. Q. Specifically were you responsible for the safety of the men under your general supervision? A. I would not say that, no. Q. Well, what would you say? A. I would restate my answer to your last question, that everybody employed and the officers of the company are responsible for all the men working for us. Q. Then you did have responsibility for safety of the men under your direction? A. Along with the rest of the people, yes sir. Q. Who in the organization had the responsibility to be informed correctly on the subject of safety orders for equipment under your direction and control? A. We have an attorney for one of the plaintiffs here who had what they call their safety engineers in the area who covered our jobs monthly or weekly and they were the ones that wrote a report on our jobs, all jobs, and we took care of everything that the plaintiff who is now suing me personally, we took care of every order and that is a matter of record. That can be brought up. But the plaintiff's man made a canvass of this area at least once a month. He was our safety engineer.'

As state by this court in Jackson v. Georgia-Pacific, Inc., 195 Cal.App.2d 412-418, 15 Cal.Rptr. 680, 682; 'As pointed out in Towt v. Pope, 168 Cal.App.2d 520, 336 P.2d 276, if co-employees were to be regarded as employers they would be subject to the duties and obligations of the master without benefit of the economic rewards which could be obtained from the enterprise and that therefore, such a construction struction of section 6304 of the Labor Code was obviously unfair and could not have been made within the contemplation of the legislature when it adopted its definition of an employer, as set forth in that section.

'However, that is not to say that a supervisory emplyee may not be liable to a co-employee working under him.

'The rule which makes one employee liable to another employee for injuries occasioned by the former's negligence while both are engaged in a common employment is predicated upon the duty which one owes to the other. 35 Am.Jur. 956. Or, as stated in 20 A.L.R. 155: '* * * the fundamental question which must ultimately furnish the rule of decision in this class of cases is whether or not a servant owes a duty to the person injured. If he does, he is liable; if he does not, he is not liable.'

'Defendants, however, contend that such duty relates only to acts of misfeasance and not to nonfeasance; hence, the court was correct in the instruction which it gave to the jury. We are inclined to agree with plaintiffs that such a distinction is both invalid and immaterial. We find nothing in the Towt case to the contrary. There the court held that if the manager Pope was to be held for negligence it must be based on 'his failure to perform a duty.' Towt v. Pope, supra, 168 Cal.App.2d 530, 336 P.2d 282.

'It should be noted that what we have said heretofore is not to be confused with the duty of the true employer to maintain a safe place of employment. What we refer to was the duty of Lisbon, Nugent, and Roberts to make certain the decedent was not required to work in an unsafe place. Mechem on Agency states the rule as follows:

"So the managing agent of a lumber company having full charge and control of its mill and machinery and in assigning employees to work at various machines, is personally liable for an injury caused by setting an inexperienced and ignorant employee at work upon a dangerous machine.

"So an agent having complete control and management of a mine with power and authority to do whatever is reasonably necessary to prevent injury from its operation is personally resonsible for an injury caused by his neglect to take necessary precautions against the accumulation of dangerous gas therein.' Mechem on Agency, [2d ed.], sec. 1477, p. 1097.

'We find nothing to the contrary in the cases of this state cited by defendant. In fact, no case has been cited by either party which is directly in point or which commits this state to either rule. The cases from other jurisdictions...