Fernquist v. San Francisco Presbytery

Decision Date12 July 1957
Docket NumberNo. 17298,17298
Citation152 Cal.App.2d 405,313 P.2d 192
CourtCalifornia Court of Appeals Court of Appeals
PartiesEdwin J. FERNQUIST, Plaintiff and Respondent, v. SAN FRANCISCO PRESBYTERY, Defendant and Appellant.

Barfield & Barfield, San Francisco, for appellant.

William E. Ferriter, John M. Quinn, San Francisco, for respondent.

FRED B. WOOD, Justice.

Plaintiff recovered judgment for $8,000 for personal injuries sustained while working on a dormitory building being erected on land of the defendant Presbytery of San Francisco, a religious corporation. The defendant maintains the land and the buildings on it as conference grounds, especially for persons of high school age during summer months and for varied church activities on week-ends during the rest of the year. It is for the use of the entire Presbytery, including its constituent churches and their individual members.

Defendant's board of directors created a Conference Grounds Committee. A member of that committee, Rev. Fred B. Trevitt, testified that he was in charge of the construction on the grounds, including the dormitory where plaintiff was injured.

The defendant committee requested the various Presbyterian churches in the area, including that to which plaintiff belonged, to ask their parishioners for volunteer help in the work of construction, and to do so without compensation.

For some of the buildings the services of a contractor had been retained, but not for the dormitories, including the dormitory where plaintiff was injured. For these buildings a voluntary architect submitted plans which the committee adapted to its financial ability. They had a Mr. Bertaud, a carpenter out of work at the time, not a general contractor, to supervise the building of these dormitories. He acted in the capacity of a superintendent to direct the men what to do when they arrived. He was there to be sure that they put the structures up correctly. 'So much of our help didn't know.' He was given power to tell these men how to do the work. The witness anticipated they might get some unskilled labor on this job. Bertaud was instructed to more or less tutor or supervise this unskilled labor. It would have been either Mr. Bertaud or a Mr. Patton, resident manager, who gave the instructions to the members of plaintiff's party.

Plaintiff, a carpenter of more than 30 years' experience is a member of one of defendant's constituent churches. Responding to an announcement by the defendant through his minister, he volunteered to work on this project.

One of plaintiff's fellow church members conveyed plaintiff and three other members (Messrs. Rennison, Neubaure and Collins) to the job and introduced them to the man in charge. This man told them what to do. He directed them to one of the dormitories and to a group of rafters and a ridge board (all cut and ready to go into place) and told them: 'The thing to do next is to get these rafters into place, and some of you can go aloft and commence placing them, and others can pass them up.'

Plaintiff and Rennison (a carpenter by trade) proceeded to lay and nail 2"' X 12"' planks lengthwise of the building on top of the centers of the first floor ceiling joists. This center board was designed to serve as a temporary support for the rafters and for plaintiff and Rennison to stand upon while putting the rafters in place. Next, plaintiff and Rennison cut off some overhanging branches of a tree.

Meanwhile, Collins and Neubaure 1 began taking the rafters up and laying them across the center-board and the top plates of the side walls of the building. Plaintiff had nothing to do with this phase of the work. He gave no instructions to Collins or Neubaure. He had no authority to instruct any one. He observed no one supervising Collins and Neubaure while they were doing this work.

After the tree-trimming, plaintiff walked toward the end of the building where Collins and Neubaure had commenced their work, to start putting the rafters into place. At first he walked on the 2"' X 4"' top plate. Then, reaching a group of rafters, he walked on them for about ten feet, when they gave way and he fell through to the floor below. He stepped on those rafters because they were solid together. They were laid flat; four or five piled on top of each other in a row. The rafters piled up there seemed a much more solid support than the 2"' X 4"' plate he had been walking on. It seemed a solid path for him to follow to get where he wanted to be. As he walked along until he reached the point where he fell through, none of the rafters turned. It was solid. He was watching where he was going. He always watches his feet when walking on top of a building. Many hundreds of times he has done the same thing. He was long experienced in this type of construction.

In support of its appeal the defendant claims (1) the evidence does not support the verdict and (2) the court committed prejudicial error in the giving and refusing of instructions.

Defendant's first claim is that the evidence demonstrates, as a matter of law, that plaintiff was a licensee, not an invitee, and that defendant violated no duty it owed to plaintiff as a mere licensee. We do not so view it. The evidence warrants implied findings that plaintiff was there at the invitation of the defendant to aid it in fulfilling one of the defendant's corporate purposes and functions and, therefore, that defendant owed him a duty to exercise ordinary care to keep the premises in a reasonably safe condition or to warn him of danger.

This is like the case of the actress-dancer in Edwards v. Hollywood Canteen, 27 Cal.2d 802, 167 P.2d 729, who was injured while performing volunteer work as a hostess, dancing with a boisterous marine. The court deemed her an invitee: 'It appears that plaintiff was on defendant's premises at the request or invitation of defendant for the purpose of aiding it in the promotion of its objective of providing gratuitous entertainment for members of the armed forces. Thus while plaintiff was invited on the premises for what might be viewed in the nature of a social affair, the entertainment carried on was part of defendant's corporate function and plaintiff was present to aid in fulfillment of that function, and it is therefore quite clear that defendant received a benefit from the presence of plaintiff.' 27 Cal.2d at pages 808-809, 167 P.2d at page 732-733.

Upon the point that the benefit need not be measured in monetary terms, the court cited David v. Central Congregational Society, 129 Mass. 367, the case of a person injured upon a path in the church grounds after attending a church conference. Of similar import is Weigel v. Reintjes, Mo.App.1941, 154 S.W.2d 412, the case of a worshipper who was hurt by falling into a drainage ditch in the churchyard before services. (See also Prosser, Business Visitors and Invitees, 26 Minn.L.Rev. 573, 594-595; James, Tort Liability of Occupiers of Land: Duties Owed to Licensees and Invitees, 63 Yale L.J. 605, 616-619.) Surely, a church member who is urged and requested to and does contribute his labor and his skill to the construction and improvement of the property of his church should not be in a worse position than a communicant who goes to church to attend a worship service.

Defendant's contention seems to be that this was a joint venture and that there is no such duty of care owing from one joint venturer to another joint venturer. Whether they were joint venturers or not seems beside the point. In a controversy between joint venturers the doctrine of imputed negligence from the one to the other does not obtain. Roberts v. Craig, 124 Cal.App.2d 202, 208-210, 268 P.2d 500, 43 A.L.R.2d 1146. The important question is: Which one of them was in control or were both in control? Walker v. Adamson, 9 Cal.2d 287, 290, 70 P.2d 914. Here, the evidence supports an implied finding that the defendant, not the plaintiff, had control over the placing of the rafters across the center-board and the top plate, in readiness for use by plaintiff and Rennison.

Defendant's chief reliance is upon Coleman v. California Yearly Meeting, etc., 27...

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6 cases
  • Garner v. Pacific Elec. Ry. Co.
    • United States
    • California Court of Appeals Court of Appeals
    • April 24, 1962
    ...51 Cal.2d 205, 331 P.2d 645; Raich v. Aldon Construction Co. (1954) 129 Cal.App.2d 278, 276 P.2d 822; Fernquist v. San Francisco Presbytery (1957) 152 Cal.App.2d 405, 313 P.2d 192; Sullivan v. Shell Oil Co. (9 Cir. 1956) 234 F.2d 733; United States v. White (9 Cir. 1954) 211 F.2d 79; Miller......
  • Speece v. Browne
    • United States
    • California Court of Appeals Court of Appeals
    • September 2, 1964
    ...the benefit of the occupant of the premises. (Cain v. Friend, supra, 171 Cal.App.2d p. 809, 341 P.2d 753; Fernquist v. San Francisco Presbytery, 152 Cal.App.2d 405, 409, 313 P.2d 192.) Even where the benefit to the occupant is intangible the one rendering services may rely upon them to esta......
  • Marshall v. Intern. Longshoremen's and Warehousemen's Union Local 6, Dist. 1
    • United States
    • California Court of Appeals Court of Appeals
    • December 4, 1961
    ...in the enterprise, unless the latter also had control of the activity which produced the injury (citing Fernquist v. San Francisco Presbytery, 152 Cal.App.2d 405, 313 P.2d 192; Roberts v. Craig, 124 Cal.App.2d 202, 268 P.2d 500, 43 A.L.R.2d 1146; Ledgerwood v. Ledgerwood, 114 Cal.App. 538, ......
  • Cain v. Friend
    • United States
    • California Court of Appeals Court of Appeals
    • July 9, 1959
    ...P.2d 729. A carpenter working without compensation in the construction of a church building is an invitee. Fernquist v. San Francisco Presbytery, 152 Cal.App.2d 405, 313 P.2d 192. Defendants seek to argue that plaintiff was merely a social visitor or guest upon the premises. Such a visitor ......
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