Dahl-Beck Elec. Co. v. Rogge

• Decision Date: 27 August 1969
• Docket Number: DAHL-BECK
• Citation: Dahl-Beck Elec. Co. v. Rogge, 80 Cal.Rptr. 440, 275 Cal.App.2d 893 (Cal. App. 1969)
• Court: California Court of Appeals
• Parties: ELECTRIC CO., Inc., a California Corporation, Plaintiff and Cross-Defendant and Appellant, v. George ROGGE, individually and dba Rogge's Backhoe & Trenching and Jack Stradford, Defendants and Cross-Complainants and Respondents. Civ. 25219.

Page 440

80 Cal.Rptr. 440

275 Cal.App.2d 893

DAHL-BECK ELECTRIC CO., Inc., a California Corporation, Plaintiff and Cross-Defendant and Appellant, v.George ROGGE, individually and dba Rogge's Backhoe & Trenching and Jack Stradford, Defendants and Cross-Complainants and Respondents.

Civ. 25219.

Court of Appeal, First District, Division 1, California.

Aug. 27, 1969.

Hearing Denied Oct. 22, 1969.

Raymond H. Levy, San Francisco, for appellant.

Crist, Crist & Griffiths, John R. Griffiths, Robert E. Schulz, Layne, Brodie & Germino, Palo Alto, for respondents.

MOLINARI, Presiding Justice.

Plaintiff corporation appeals from a judgment entered after a jury verdict awarding $1,215.00 to defendantGeorge Rogge, on his cross-complaint, and finding in favor of said defendant and defendantJack Stradford on plaintiff's complaint.

The Facts

In July 1964plaintiff, an electrical contractor, was performing work on the premises of the University of San Francisco pursuant to contract.A representative of plaintiff telephoned Rogge and asked if Rigge had a backhoe available for trench digging.Rogge sent Stradford and the backhoe to the jobsite.The rate agreed to be paid to Rogge was $14 per hour for providing one man and the backhoe.Stradford, as the operator of the equipment, was paid by Rogge on the basis of the total time spent on the backhoe.

Stradford reported to Robert Albright, plaintiff's project foreman.Albright drove a stake and told Stradford to begin digging a trench at that point.He also told Stradford how far he should dig and to be careful because there were pipes and a water main in the area.During the process of the backhoe digging operation a four-inch water main dropped into the ditch and as a result plaintiff was required to make emergency repairs.The complaint in this action sought to recover the cost of such repairs from Stradford and Rogge.

Stradford testified that although the pipe was exposed in the process of the digging, he did not undercut it.He stated that the soil which came out from under the pipe 'sloughed' away and that there was nothing he could do to prevent this sloughage.He also stated he did not use any shoring to brace the pipe.¹

Defendant Rogge testified that he did not have a contractor's license at the time of the events in this case and that he had never had a contractor's license.He also stated that he did not 'bid' on plaintiff's job and that he did not have a written contract for the work with plaintiff or the University of San Francisco.He further testified that he had done other work for plaintiff before 1964 and that he was paid on an hourly basis.Before the incident of the falling pipe, Rogge was never on the site of the work involved in this litigation.

Throughout the period that Stradford was operating the backhoe he regularly reported to Albright for directions as to where he should dig and at the close of each day's work Albright would inform Stradford whether or not he would be needed on the succeeding day.Albright also gave other detailed instructions to Stradford about the course of the work.

Albright saw the exposed water pipe on the morning of the day it fell and warned Stradford to stay away from it.However, he testified that he did not return to the scene of the excavation until after the pipe fell into the ditch.

Plaintiff did not pay for the work performed, but brought an action against Rogge and Stradford alleging that the excavating work was negligently performed and seeking repair expenses in the amount of $6,615.17.Rogge and Stradford answered denying that they were negligent, and Rogge cross-complained for $1,215 for services performed.

Contentions

We find it difficult to identify plaintiff's arguments.Plaintiff does not directly maintain that there was such substantial evidence of negligence on the part of Stradford as to require a verdict against Stradford and Rogge as a matter of law.However, plaintiff does discuss all the evidence relating to liability in great detail and states it is unable to comprehend why the jury did not return a verdict against Rogge and Stradford.What plaintiff is apparently contending is that Rogge was an independent contractor as a matter of law, and that the court erred in submitting this issue to the jury; that Stradford was negligent as a matter of law, and that such negligence was imputed to his employer, Rogge; and that Rogge, as an unlicensed contractor, could not maintain an action for his work.Plaintiff also argues that the court erred in refusing to admit into evidence certain reports made by Albright after the accident.We observe, however, that plaintiff's chief contentions on this appeal relate to alleged errors in instructions.

Negligence

Plaintiff's complaint is predicated upon the negligence of Rogge and Stradford in the performance of the excavation work for which they were hired.Under this cause of action the status of Rogge and Stradford, whether independent contractors, agents or employees, is not significant since, if their negligence proximately contributed to the damage complained of, they would be liable to plaintiff in any such capacity.In this regard, we particularly note that if Stradford, as the subagent of Rogge, were negligent, that negligence would be imputed to Rogge, and Rogge, in turn, would be liable therefor to plaintiff.(SeeTranscon. & W. Air. v. Bank of America, 46 Cal.App.2d 708, 713, 116 P.2d 791;Smith v. National Bank of D. O. Mills & Co., 9 Cir., 191 F. 226;seeCiv.Code, § 2349.)We also observe here that Stradford, as the lawfully appointed subagent of Rogge, represented plaintiff, as principal, in like manner with Rogge.(SeeTowt v. Pope, 168 Cal.App.2d 520, 531, 336 P.2d 276;Malloy v. Fong, 37 Cal.2d 356, 372--375, 232 P.2d 241;Civ.Code, § 2351.)

The jury in the present case was instructed on negligence, contributory negligence, and proximate cause.The jury returned a verdict in favor of Rogge and Stradford.This verdict implies either that Rogge and Stradford were not negligent, or, if they were, that plaintiff was contributorily negligent and that such negligence was a proximate cause of the damage claimed to have been suffered.Either finding is supported by substantial evidence in the record.

Status of Defendant Rogge

The question whether Rogge was an independent contractor was submitted to the jury with detailed instructions.Plaintiff contends that the question should have been decided as a matter of law because the uncontradicted evidence indicated that Rogge was an independent contractor.

Before evaluating this claim we note that Rogge's status is crucial to his recovery on the cross-complaint.Any person who meets the definition of a contractor as set out in Business and Professions Code, section 7026² may not bring an action for compensation unless he is duly licensed under the laws of the state.(Bus. & Prof. Code, § 7031.)Defendant Rogge admittedly was not licensed.The requirement of a license does not apply, however, 'to any person who engages in the activities regulated, as an employee with wages as his sole compensation.'(Bus. & Prof. Code, § 7053.)

Turning to plaintiff's basic contention, we observe that it is established that '* * * where but one inference can reasonably be drawn from the evidence * * * the question of whether one is an employee or an independent contractor becomes one of law for the court.(Citation.)'(Burlingham v. Gray, 22 Cal.2d 87, 100, 137 P.2d 9, 16;Yucaipa Farmers etc. Assn. v. Ind. Acc. Comm., 55 Cal.App.2d 234, 238, 130 P.2d 146;Perguica v. Ind. Acc. Comm., 29 Cal.2d 857, 859, 179 P.2d 812;Hardin v. Elvitsky, 232 Cal.App.2d 357, 373, 42 Cal.Rptr. 748, 756.)It is equally well established, however, that 'In order to establish a fact as a matter of law the state of the evidence must be such that no other conclusion is legally deducible therefrom.(Citations.)'(Hardin v. Elvitsky, supra.)Also of particular significance to the disposition of plaintiff's contention is the corollary rule that where there is a conflict in the evidence from which either conclusion could be reached as to the status of the parties, the question must be submitted to the jury.(Yucaipa Farmers etc. Assn. v. Ind. Acc. Comm., supra, 55 Cal.App.2d at p. 238, 130 P.2d 146;Hardin v. Elvitsky, supra, 232 Cal.App.2d at p. 373, 42 Cal.Rptr. 748 and cases there cited;Rodoni v. Harbor Engineers, 191 Cal.App.2d 560, 562, 12 Cal.Rptr. 924;Jackson v. Pancake, 266 A.C.A. 323, 327--328, 72 Cal.Rptr. 111;Rest.2d Agency, § 220, com. c.)This rule is clearly applicable to cases revolving around the disputed right of a party to bring suit under the provisions of Business and Professions Code, section 7031.(SeeJackson v. Pancake, supra;Rodoni v. Harbor Engineers, supra;Cargill v. Achziger, 165 Cal.App.2d 220, 222, 331 P.2d 774.)

Adverting to the argument of plaintiff in light of the foregoing principles, we conclude that his basic premise must be rejected.The evidence was not clear and uncontradicted that Rogge was an independent contractor.To the contrary, there was substantial evidence that Stradford's work was very much under the control and direction of plaintiff's project foreman.As we recently summarized the applicable law: 'The determination of whether the status of an employee or that of an independent contractor exists is governed primarily by the right of control which rests in the employer, rather than by his actual exercise of control; and where no express agreement is shown as to the right of the claimed employer to control the mode and manner of doing the work, the existence or nonexistence of the right must be determined by reasonable inferences drawn from the circumstances shown, and is a question for the jury.'(Hardin v. Elvitsky, supra, 232 Cal.App.2d 357, 373, 42 Cal.Rptr. 748, 756;seeBurlingham v. Gray, supra, 22 Cal.2d 87, 99, 100, 137 P.2d 9.)In the instant case there was direct...