Gettemy v. Star House Movers, Inc.

Decision Date17 March 1964
Citation225 Cal.App.2d 636,37 Cal.Rptr. 441
PartiesPacita A. GETTEMY, Linda Kaye Gettemy and Donald James Gettemy, by Pacita A. Gettemy, their guardian ad litem, Plaintiffs and Respondents, v. STAR HOUSE MOVERS, INC., Appellant, Eugene H. Rahenkamp, doing business as Gene's Crane Service, and Star House Movers, Inc., Defendants. Civ. 27375.
CourtCalifornia Court of Appeals Court of Appeals

Elmer O. Docken, McBain & Morgan, and James L. Roper, Los Angeles, for defendant and appellant Star House Movers, Inc.

Earl A. Barnes, Long Beach, for plaintiffs and respondents.

WOOD, Presiding Justice.

The surviving wife and two minor children of James Gettemy, deceased, obtained a verdict and judgment against defendant Star House Movers, Inc., for $50,000 as damages for wrongful death of Mr. Gettemy, who was struck by a falling palm tree. Said defendant appeals from the judgment. Verdict and judgment were in favor of the other defendant, Rahenkamp.

The first cause of action of the second amended complaint alleged that defendants Rahenkamp and Star House Movers were engaged in a joint venture for the purpose, among others, of removing large palm trees from the premises at 344 Cedar Avenue, Long Beach; the defendant Rahenkamp was the agent of Star and was acting within the course of such agency; plaintiffs' decedent, Mr. Gettemy, was the employee of a joint venture composed of defendants Rahenkamp and Star, and each of them had failed to secure payment of compensation in accordance with section 3700 of the Labor Code; on November 22, 1961, while attempting to remove a palm tree from 344 Cedar Avenue, Long Beach, the defendants, individually and as a joint venture, did negligently fail to secure said tree after severing its roots from the ground; as a proximate result of said conduct, the tree fell upon Mr. Gettemy and caused his death.

The second cause of action alleged, among other things, that on November 22, 1961, defendants Rahenkamp and Star occupied the premises at 344 Cedar Avenue by right of permission or license from the owner, and on said date Mr. Gettemy was working there at the invitation and request of defendants.

The third cause of action alleged, among other things, the defendant Star secured from the Building and Safety Department of Long Beach a permit to demolish and remove a structure and trees from premises at said 344 Cedar Avenue; that defendant Star through its officers knew that under the Municipal Code of Long Beach such permit could be issued only to the holder of a valid building-contractor's license issued by the State of California; that defendant Star, through its officers, knew that defendant Rahenkamp was neither licensed as a contractor with the City of Long Beach, nor licensed as a contractor by the state; that notwithstanding such knowledge, and the further knowledge that Rahenkamp was not properly, adequately, and safely equipped to perform the work at said 344 Cedar Avenue, the defendant Star negligently and unlawfully conspired with and selected Rahenkamp to perform the work called for by the permit.

Appellant (Star) contends that the evidence was insufficient to support the verdict and judgment against it; that the court erred in refusing to give certain requested instructions and in denying appellants' request that the jury make special findings.

Defendant Star House Movers and Mr. Maddox, the owner of the premises at said 344 Cedar Avenue, entered into a written agreement whereby Star agreed to demolish a two-story house, remove three palm trees, and otherwise clear the lot at said address. Star made a subcontract with Rahenkamp whereby he would do the actual work of demolishing the house, removing the trees, and clearing the lot. Two days before the accident, Rahenkamp employed James Gettemy (decedent) to assist in the work. Star was engaged in the business of moving and demolishing houses, but the demolishing part of the business was usually done by subcontractors. Rahenkamp had done demolition work for Star for approximately four years. Star, in making the contract with the owner of the premises, included in the contract price an amount for its own profit. Star had obtained compensation insurance and was licensed by the state as a general contractor. It applied for and obtained a permit from the city of Long Beach to do the demolition work. Rahenkamp did not have compensation insurance or a contractor's license, and he did not obtain a permit to do the work. Star had obtained the permits for the many other demolition jobs that Rahenkamp had done for Star. It may be stated generally that Rahenkamp's demolition equipment consisted of two trucks and a crane--the crane was rated as having a lifting capacity of twelve tons. His full time employee, William Cox, had been employed by him about four years. Rahenkamp and Cox had removed many palm trees but had not removed any tree as large as the one involved here, which was about 40 feet high, 2 feet in diameter, and weighed approximately 9 tons.

Rahenkamp testified that the method which he and Cox usually followed in removing a palm tree was to dig a trench around the tree so that they could cut the roots, undercut the tree at a 45-degree angle, and cause it to fall in a certain direction; the roots on palm trees are very much the same--they are about finger-size and are close together; it is a tedious task to cut such a tree down--it is like chopping into a bale of cotton; it is impossible to pull a palm tree down unless the roots are cut; if the roots are not cut, it is impossible to pull a palm tree over without breaking it off and leaving a stump.

On the day the demolition work was commenced at said address, Cox and Gettemy started digging and cutting around one of the two larger palm trees. They worked at the tree, off and on, between the times that Cox drove a truck to the dump and otherwise helped Rahenkamp, who was operating the crane in demolishing the house and in loading the truck. During the half hour before the tree fell, Gettemy was digging at one side of the tree, and Cox was at the other side of the tree undercutting it in the direction that he intended that it should fall. About fifteen minutes before it fell, Rahenkamp came from the place where he was operating the crane and said that he thought there had been enough cutting on the tree. Cox thought it had not been cut enough, and he continued undercutting for a few minutes. Cox had planned for the tree to fall between the two houses which were about thirty feet apart. After Cox had quit undercutting the tree he walked to the place where Rahenkamp was operating the crane, but he did not talk to Rahenkamp. Then, as he went away and was about thirty feet from Rahenkamp, the tree fell between the two houses. It struck and killed Mr. Gettemy.

It does not appear that an officer or employee of Star was at the Cedar Avenue premises during the demolition or tree-removing work.

The streek-tree superintendent of the Parks Department of Long Beach testified that a customary method of removing a palm tree in the city of Long Beach is to top the tree by cutting off all the fronds; then to fasten guy lines to the tree; then undercut the tree at ground level--and while making the final curt to guide the while making the final cut to guide the dig the stump out or remove it with a grinding machine. He testified further that another customary method is to top the tree as in the first method; then at a place about half way down, undercut the upper part of the tree and drop that part by using the guide lines; then by using a winch truck with a cable hooked to the remaining part of the tree pull the remaining part over--while digging under the tree. He testified further that it is not safe practice to remove a palm tree in a municipality by digging around and under the tree, and by undercutting it.

Cox testified that he did not intend to use a crane in laying the tree down or intend to guide its fall with anything other than undercutting.

Edwin Firnell, one of the owners and managers of Star House Movers, testified that the removal of a palm tree in a congested area is done differently from a removal in an open field; that, on a tree of the size of the one involved here, a cable is used for safety, but sometimes in a field or in the woods nothing is used as a guide. He also testified that before they made the subcontract with Rahenkamp he (witness) went to 344 Cedar Avenue in Long Beach and observed that automobiles were parked on the lot behind the house--that it was a 'downtown parking lot.'

Thomas Firnell, one of the owners and managers of Star, testified to the effect that ordinarily while the last undercutting is being done, a cable is hooked onto the tree. He also testified that he thought that Rahenkamp had some type of license but he (witness) did not know what it was, and he assumed that he had some type of license in order to operate.

Rahenkamp testified that he thought he had discussed with Edwin and Thomas Firnell the fact that he (Rahenkamp) did not have a contractor's license; and that he thought that they knew he did not have such a license.

Mr. Gettemy had not had any experience in removing palm trees.

It is not contended that Mr. Gettemy was an employee of Star.

As above stated, appellant (Star) contends that the evidence was insufficient to support the verdict and judgment against appellant. It argues that Rahenkamp was an independent contractor, and that under such relationship Star would not be liable. It argues further that the verdict which was in favor of Rahenkamp and against Star is inconsistent, contradictory, and against law under any of plaintiffs' alleged theories of the case as alleged in the first and second causes of action. In the first cause of action it was alleged that Rahenkamp was an agent of and joint venturer with Star. Appellant...

To continue reading

Request your trial
14 cases
  • Salinero v. Pon
    • United States
    • California Court of Appeals Court of Appeals
    • October 1, 1981
    ...contractor (Mackey v. Campbell Construction Co., supra, 101 Cal.App.3d 774, 785-786, 162 Cal.Rptr. 64; Gettemy v. Star House Movers (1964) 225 Cal.App.3d 636, 643-645, 37 Cal.Rptr. 441), and had the sand-filled bucket tipped over, releasing the anchor for the ladder, we could easily find th......
  • Grahn v. Tosco Corp.
    • United States
    • California Court of Appeals Court of Appeals
    • November 4, 1997
    ...negligent hiring claims may be asserted by employees of an independent contractor against the hirer. (Gettemy v. Star House Movers, supra, 225 Cal.App.2d at p. 643, 37 Cal.Rptr. 441.) Woolen had similarly concluded the "others" to whom a hirer owed a legal duty under Restatement sections 41......
  • Camargo v. Tjaarda Dairy
    • United States
    • California Court of Appeals Court of Appeals
    • April 14, 2000
    ...1390, 68 Cal.Rptr.2d 806; Chevron v. Superior Court, supra, 4 Cal.App.4th at p. 549, 5 Cal.Rptr.2d 674; Gettemy v. Star House Movers (1964) 225 Cal.App.2d 636, 643-644, 37 Cal.Rptr. 441; Holman v. State of California, supra, 53 Cal.App.3d at p. 336,124 Cal.Rptr. Although there is a paucity ......
  • Kinsman v. Unocal Corp.
    • United States
    • California Court of Appeals Court of Appeals
    • July 18, 2003
    ...that an employee of a subcontractor is an invitee for purposes of liability under section 343. (See Gettemy v. Star House Movers (1964) 225 Cal. App.2d 636, 644-645, 37 Cal.Rptr. 441.) Kinsman contends Privette is irrelevant because, under section 343, a landowner's liability is "direct" an......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT