Hard v. Hollywood Turf Club

• Decision Date: 18 July 1952
• Citation: 246 P.2d 716,112 Cal.App.2d 263
• Court: California Court of Appeals Court of Appeals
• Parties: HARD v. HOLLYWOOD TURF CLUB et al. Civ. 18750.

Page 716

246 P.2d 716

112 Cal.App.2d 263

HARD v. HOLLYWOOD TURF CLUB et al.

Civ. 18750.

District Court of Appeal, Second District, Division 2, California.

July 18, 1952.

Rehearing Denied Aug. 7, 1952.

Hearing Denied Sept. 11, 1952.

Shell, Delamer & Loring, Los Angeles, for appellant.

Samuel P. Young, Los Angeles, for respondent.

MOORE, Presiding Justice.

The Hollywood Turf Club by a writing engaged appellant to remodel and renovate its grandstand by removing two floors of a section and by reconstructing three floors. For the purpose of executing its contract, appellant let 21 subcontracts with the approval of the Club and employed 125 men for the general work. The Arenz-Warren Company had the subcontract to do the painting and it employed a superintendent and two foremen besides workmen. Respondent was one of the painters. On December 15, 1947, he was at work on a defective scaffold when it collapsed and precipitated him 40 feet causing severe injuries. As his employer, Arenz-Warren submitted to the jurisdiction of the Industrial Accident Commission which awarded respondent compensation for his injuries. By this action respondent has been awarded judgment for damages against the general contractor based upon the latter's alleged negligence.

Respondent claims that he had two employers at the grandstand, namely, Arenz-Warren who engaged him to work and the L. E. Dixon Company which did not employ him to work. As to the former there is no dispute. They have answered for the industrial accident in the proper forum. They constructed their scaffold and their employee was injured by using it. But respondent contends that he is entitled to a second judgment against appellant on the theory that the latter was also his employer; that its superintendent, Mr. Ayers, was 'responsible for the job as a whole,' scheduled and coordinated the work of the subcontractors, had to 'push' the painters and other subcontractors to speed up their work, knew for two weeks of the high painting being done on the scaffolding. He saw that the painters were not equipped with such safety belts as he would have required his own men to wear. However, there is no evidence that appellant directly controlled the movements of respondent or of any employee of a subcontractor. Neither did appellant direct the details of the painting. It gave only general instructions as to the work to be done. But at the same time, Mr. Ayers knew that Arenz-Warren kept on the grandstand its own superintendent and two foremen, Messers Sheldon and Malone who supervised the rigging of scaffolds and directed the course of the painters' work.

Appellant had nothing to do with the construction of the scaffold. Its nearest approach thereto was transporting some of the materials to the overhead site by use of its crane. Included among such materials was a steel strip taken from an old section of the grandstand and used as support for one end of the scaffold. It was the buckling of this piece of metal which apparently caused the collapse of the scaffold from which respondent fell. There is no proof of the latter's assertion that the strip was actually supplied by appellant. In such event, any theory of direct or affirmative negligence on appellant's part is without evidential support. It supervised the reconstruction operations and accommodated Arenz-Warren by hoisting their materials to the higher levels. It follows that in the absence of proof of appellant's negligence, the only proposed theory upon which it can be adjudged the debtor of respondent is that it was respondent's 'employer,' as that term is defined in the Labor Code discussed below. It could not have been respondent's employer in the traditional sense of that term. 'A subcontractor bears the same relation to the contractor that the latter does to his employer, and the rule governing each status is the same.' George v. Trinity Church, 176 Cal. 553, 556, 169 P. 69, 70. Therefore, respondent as employee of a subcontractor is in no position to enforce a right to judgment against appellant. Slyter v. Clinton Construction Co., 107 Cal.App. 348, 353, 290 P. 643.

While the trial judge recognized the general rule governing the liability of a general contractor, under instructions given, the jury was encouraged to find facts from which appellant's liability was the logical sequitur. It was successfully maintained below that (1) appellant was under statutory duty to provide a safe place for respondent to work and, (2) pursuant to the contract with the Turf Club, appellant had undertaken to provide for the safety of all workmen engaged in the reconstruction operations.

Safe Place to Work

Respondent was entitled to a safe place to work and to such devices as would reasonably have guarded him against injury. The State and the world of industry had reached that conclusion when in 1911 the legislature was directed by section 21 of Article XX of the Constitution to create the first 'Workmen's Compensation Insurance and Safety Act.' While the lawmakers are at liberty to enact bold and revolutionary measures in the exercise of the police power, the statesmen of that period sought to forestall contentions based upon archaic doctrines and contradictory statutes and to extend the judicial power to the Industrial Accident Commission authorized by section 21. The preservation of manpower, its security against loss or impairment and poverty were undertaken amid dire misgivings. How well it has succeeded is recorded nowhere with deepercut letters than in the archives of this state. All industries and commercial houses at first and, finally, all places where men and women toil, must guarantee the laborer against injury by any kind of accident, whatever its origin, so long as he is occupied in the course of employment at the time of injury. Measures for insuring the collectibility of such awards as might be made were also incorporated in statutes and the system works well.

But in the case at bar, the trial court instructed the jury that appellant, a general contractor, was under statutory duty to provide a safe place for respondent, employee of an independent subcontractor, to work and in particular to supply safe scaffolding in conformance with statutory regulations. The statutes involved are sections 6401, 7151 and 7152 of the Labor Code ¹. They relate to the duty of an employer to provide for the safety of his employees. Section 6401 requires every employer to furnish and use safety devices and to use practices and processes reasonably adequate to render the employment safe. Section 7151 requires all scaffolding suspended from an overhead support more than 10 feet above a solid surface to be equipped with a rigid safety rail and so secured as to prevent swaying and to have sufficient strength to support any weight which might reasonably be placed thereon. Section 7152 requires safety lines to be furnished to tie the hooks on the roof, and a line secured above to the individual workman.

While the three sections clearly imposed upon the employer definite responsibilities toward his employee, difficulties have arisen by virtue of the emplacement of section 6304 ² in the definition chapter of Part 1, Division 5 of the Labor Code. That section declares that 'employer' includes every person having direction, management, control or custody of any place of employment or employee. Because the comprehensive language of that section describes in general terms the work or office of the 'employer' and because those terms describe the work of appellant in performing its contract with the Turf Club, respondent leaps to the conclusion that appellant was the employer of respondent and owed the latter the care prescribed by sections 6401, 7151 and 7152.

Such conclusion is erroneous. There is nothing contained in such statutes which indicates a legislative intent to apply the provisions of the scaffolding laws to a general contractor in his relations with a subcontractor's employee.

A scrutiny of the labor code and its statutory forbears leads only to the conclusion that sections 7151 and 7152 were intended to be applicable solely to an employer in the usual sense, to wit, one who has employed and managed the toiler. The definition of 'employer' relied upon by respondent is found in section 6304, Chapter 1, Part 1, Division 5 of the code, while sections 7151 and 7152 are under Part 3--'Safety on Buildings'--with buildings under construction or repair heading Article 1 and scaffolding being the subject of Article 2. The language of section 7152 requires that an 'employer' who uses scaffolding must furnish safety lines to tie all hooks and hangers back on the roof and also provide safety lines hanging from the roof to support the platform and further to provide each workman with a line from the roof. Could it be said upon any reasonable construction that the intention there was to require the general contractor to provide such 'lines' to an employee of a subcontractor who has undertaken to do the painting? Such a requirement would impose an unreasonable burden. Multiply that item by the number of employees on the premises serving 21 subcontractors and it would leave the office of a general contractor one to be avoided.

This leads to the observation that the aim of safety and insurance statutes is not to hinder or do harm to employers. Taking them by and large, those laws serve the best interest of management and of society as a whole by preserving the manpower of industry and by maintaining the established economy. The Legislature could not reasonably have intended to operate a hardship upon employers by making one contractor liable for the neglects of another. If as the generalissimo of a construction job, the general contractor leaves holes in the floor or grease upon it whereby any invitee might suffer injury, of course he would be liable. But where he has agreed by subcontract with an experienced and reputable painter to...