Florez v. Groom Development Co.

• Decision Date: 31 December 1959
• Citation: 1 Cal.Rptr. 840,53 Cal.2d 347,348 P.2d 200
• Parties: , 348 P.2d 200 Peter G. FLOREZ, Respondent, v. GROOM DEVELOPMENT CO., Inc. (a corporation), et al., Appellants. S. F. 20249
• Court: California Supreme Court

Page 840

1 Cal.Rptr. 840

53 Cal.2d 347, 348 P.2d 200

Peter G. FLOREZ, Respondent, v. GROOM DEVELOPMENT CO., Inc. (a corporation), et al., Appellants.

S. F. 20249.

Supreme Court of California

Dec. 31, 1959.

Rehearing Denied Jan. 27, 1960.

Carroll, Davis, Burdick & McDonough and Richard B. McDonough, San Francisco, for appellants.

Naphan & Harbaugh, Oakland, Lewis F. Sherman, Berkeley, and Alfred R. Naphan, Oakland, for respondent.

PETERS, Justice.

Plaintiff, Peter G. Florez, an employee of the painting subcontractor on a job on which defendant Groom Development Company was the general contractor, brought this action against the general contractor and its owner to recover damages for injuries plaintiff sustained on the job. The jury returned a verdict in favor of plaintiff and against both defendants in the amount of $32,500. Defendants' motions for a judgment notwithstanding the verdict and for a new trial were denied. Defendants appeal from the judgment entered on the verdict.

The facts are as follows: In January of 1957 the Groom Development Company was the general contractor for the construction of a subdivision in Oakland. Plaintiff, a sheet rock finisher and taper, was an employee of the painting subcontractor, Paul Johnson. On January 7, 1957, plaintiff was assigned by his foreman to work on the interior of one of the houses under construction. As far as he knew, on that day, plaintiff was the only mechanic working on that house. One Palmer, a laborer employed by Groom Development Company, did some cleaning up work in and around the house during the morning of January 7th, but plaintiff did not see him around in the afternoon. In the course of his work, plaintiff was required to use a paste requiring water as one of its ingredients. He had mixed a batch of this paste at his employer's shop before he started work on the house in question on January 7th, but ran out of paste at about 3 p. m. It was necessary to mix up another batch, but he needed water for that purpose. That day, while eating lunch, he had observed a water faucet on the outside of the house on which he was working. So far as he knew, and so far as the evidence shows, this was the only water available in the vicinity. Plaintiff took two empty five-gallon cans, walked outside the house and over to where the faucet was located to get some water. The plumbing subcontractor had dug a ditch which separated the faucet from the adjoining area. This ditch paralleled the garage wall of the house. It was about five feet deep and about two feet across. The dirt excavated from the ditch had been thrown up on the side of the ditch away from the garage, forming an embankment. At the point where the faucet was located and leading directly to it the plaintiff saw a four by six-inch plank about four or four and a half feet long extending across the ditch. He noticed that one end of the plank had been placed on the foundation of the garage and the other in a depression in the embankment. He placed one of the cans on the ground, held onto the other, and proceeded to step onto the plank with both feet, one ahead of the other. As he reached down to turn on the water preparatory to filling the can he felt the plank behind him give way and he fell into the ditch. The plank fell with him. He suffered severe injuries. Defendants do not attack the judgment as being excessive.

Plaintiff was taken to the hospital by Palmer, an employee of Groom Development Company. On the way to the hospital Palmer told the plaintiff that he had been directed by his foreman to place the particular plank used across the ditch, which he had done, although he knew that it was unsafe.

Merlin Groom, secretary-treasurer of defendant Company, testified that his company was the general contractor on the job and also did the carpentry work; that the Groom Development Company hired laborers to work for it to clean up around the job and, under the direction of the foreman of Groom Development Company, to assist the subcontractors; that on January 4 and 5, 1957, Leon Palmer was so employed by Groom Development Company; that the foreman for Groom Development Company was one Harold Phifer; that the witness knew that around a construction job it was standard procedure to use two-by-ten inch or two-by-twelve inch planks to walk upon, and that such sized planks were safer than four-by-six inch planks. It should be noted that the wider planks would not only give a wider area upon which to walk, but obviously, would furnish a better base upon which to rest.

Leon Palmer testified that he was an employee of Groom Development Company; that he took orders only from Harold Phifer, the foreman of that company; that he was paid by the company; that he took no orders from subcontractors, although on orders from Phifer he would sometimes help the subcontractors. Palmer also testified that on the Friday before the accident (the accident happened the next Monday) he had been directed by Phifer to aid the painters in putting up some staging outside the house where the accident subsequently occurred. This staging was to be used so that the painters could paint the exterior of the house. It consisted of two six-foot high saw horses owned by Groom Development Company. In order to have a foundation upon which to rest the legs of one of the saw horses, Palmer placed the four-by-six inch plank across the ditch, with one end on the foundation of the garage and the other end on the embankment created by the construction of the ditch. In order to keep the plank level he cradled out of the dirt a depression in which that end of the plank was placed. He stated that he knew that the four-by-six inch plank was not safe and that a two-by-ten inch or a two-by-twelve inch plank was customarily used for such purposes, but he was afraid to use the wider plank, although such planks were available, because he had been told by the foreman of Groom Development Company that he would be fired if he used the larger plank for such a purpose. He was directed by Phifer to use the particular plank employed by him. After the staging had been set up, Palmer left the immediate area to do some further work and had nothing further to do with the painters, and, in particular, had nothing to do with the removal of the staging. He saw the painters removing the staging Friday night, but he did not know whether they also removed the plank. On Monday, immediately after the accident occurred, on the orders of his foreman to take plaintiff to the hospital, he returned to the scene of the accident, and saw the very same plank he had placed across the ditch on Friday, in the ditch. The bank where the plank had rested, consisting of what he called 'loose dirt,' was caved in.

Werner Feldhaus, Jr., called as a witness for defendants testified that he was employed, as was plaintiff, by the subcontractor Paul Johnson. He also testified that on Friday, January 4, 1957, he found it necessary to erect some staging so that the exterior of the house in question could be painted. He was positive that he and the foreman for Johnson put up the staging and placed the plank across the ditch. Palmer had nothing to do with this task. The plank in question was a two-by-ten inch or two-by-twelve inch plank, not a four-by-six inch plank. The laborer (Palmer) dug out the dirt on the bank to make the depression into which the plank was placed, but Palmer had nothing to do with selecting the plank or placing it across the ditch. After the witness and the other painter finished painting the exterior of the house on Friday afternoon, they removed the staging, including the plank. When the witness left the area on Friday afternoon there was no plank across the ditch. The witness had no idea who put the plank across the ditch on Monday.

On this evidence, plus the medical evidence, the jury brought in a verdict of $32,500.

The two major contentions of appellants are that, as a matter of law, the implied finding of negligence on their part is totally unsupported, and that, as a matter of law, the evidence shows that respondent was contributively negligent. There is no merit to either contention.

Both of these issues, normally, present only factual questions. In the frequently cited case of Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183, 184, it is stated: 'In reviewing the evidence on such an appeal, all conflicts must be resolved in favor of the respondent, and all legitimate and reasonable inferences indulged in to uphold the verdict if possible. It is an elementary, but often overlooked, principle of law, that when a verdict is attacked as being unsupported, the power of the appellate court begins and ends with a determination as to whether there is any substantial evidence, contradicted or uncontradicted, which will support the conclusion reached by the jury. When two or more inferences can be reasonably deduced from the facts, the reviewing court is without power to substitute its deductions for those of the trial court. (Citing cases.) To establish the defense of contributory negligence as against the verdict of a jury, the evidence must be such that the appellate court can say that there is no substantial conflict on the facts, and that from the facts reasonable men can draw but one inference, which inference points unerringly to the negligence of the plaintiff proximately contributing to his own injury. (Citing cases.)' See also Fennessey v. Pacific Gas & Elec. Co., 20 Cal.2d 141, 145, 124 P.2d 51; Mosley v. Arden Farms Co., 26 Cal.2d 213, 219, 157 P.2d 372, 158 A.L.R. 872.

Respondent as an employee of a subcontractor was admittedly an invitee of appellants, the general contractor. See cases collected 35 Cal.Jur.2d p. 663, § 147. In Pauly v. King, 44 Cal.2d 649, 653, 284 P.2d 487, 489, this court stated the duty involved in such a relationship as follows: 'An employee of a subcontractor occupies the relationship of an invitee to the...