Harness v. Pacific Curtainwall Co.

• Decision Date: 29 June 1965
• Court: California Court of Appeals Court of Appeals
• Parties: William M. HARNESS, Plaintiff and Appellant, v. PACIFIC CURTAINWALL COMPANY, Defendant and Respondent. Pacific Employers Insurance Company, Applicant and Appellant. Civ. 27506,

Page 454

45 Cal.Rptr. 454

235 Cal.App.2d 485

William M. HARNESS, Plaintiff and Appellant, v. PACIFIC CURTAINWALL COMPANY, Defendant and Respondent Pacific Employers Insurance Company, Applicant and Appellant.

Civ. 27506,

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

June 29, 1965.

Robert H. Lund and Philip E. Poppler, Long Beach, for appellant William M. Harness.

Wise, Kilpatrick & Clayton and George E. Wise, Long Beach, for appellant Pacific Employers Ins. Co. Morgan, Holzhauer, Burrows, Wenzel & Lyberg and Wm. Marshall Morgan, Los Angeles, for respondent Pacific Curtainwall Co.

ROTH, Presiding Justice.

Plaintiff, William M. Harness, employed by Myers Bros. Construction Company, Inc. (Myers Bros.) as a carpenter's helper on a construction project, was injured when a weight at the end of a strung alignment wire fell on his arm and knocked him to the ground. At the time of the accident he was walking under the wire carrying lumber to another part of the project. The wire was under the control of respondent, Pacific Curtainwall Company, (respondent), which, as a subcontractor on the project, was installing gird angles on the side of the building. Gird angles are steel that will eventually hold the curtainwall.

Plaintiff's suit for personal injuries named, among others, as defendants respondent and Myers Bros. Negligence was alleged on the part of all named defendants.

Appellant, Pacific Employers Insurance Company, (Pacific), the compensation carrier for Myers Bros., was notified of the pending action prior to the date set for trial. It did not intervene in the action to lien any judgment Harness might recover equal to the amount paid by Myers to Harness as workmen's compensation, if it was not established that Myers Bros. was guilty of concurrent negligence which proximately contributed to the injuries suffered by plaintiff. (Witt v. Jackson, 57 Cal.2d 57, 69, 17 Cal.Rptr. 369, 366 P.2d 641; Labor Code §§ 3850(b), 3853, 3856(b).) ¹ Pacific did however retain plaintiff's attorney to protect its Labor Code lien rights upon any judgment plaintiff might recover.

The trial commenced on February 21, 1962. On the same date respondent was granted leave to amend its answer and pretrial statement to set up as an affirmative defense Myers Bros.' negligence.

Following presentation of plaintiff's case, all defendants moved for a nonsuit. The motion was granted as to all defendants except respondent. The motion as to Myers Bros., however, was granted solely on the ground that plaintiff's only remedy against Myers Bros. was under the workmen's compensation laws. The jury returned a $9,500 verdict against respondent. It was agreed between the parties in trial that Myers Bros. had paid to plaintiff by way of compensation $5,855.40.

After the jury had returned its verdict, the court instructed the jury that it must now decide whether Pacific was entitled to its statutory lien against the judgment. Such decision, the court advised, would rest upon whether the evidence showed Myers Bros. had failed to provide plaintiff with a safe place to work and, if so, was it a concurrent '* * * efficient cause of an injury * * * [since] in such case, each of the participating acts or omissions is regarded in law as a proximate cause' of plaintiff's injuries. The jury returned and informed the court it could not reach a decision that afternoon. Faced with the necessity of requiring the jury to return the following morning, trial counsel approached the bench. The following then took place:

'THE COURT: Counsel have stipulated that on this issue the jury may be excused permanently and that it be decided by the Court without the jury being involved.' The jury was excused.

'* * *

'MR. MORGAN: [counsel for respondent] I will offer to waive jury on this additional question of the concurring or contributing negligence of Myers Brothers Construction Company and I will offer to submit the case to the Court on the evidence adduced in this trial. (Emphasis added.)

'Do you stipulate to that Mr. Poppler [counsel for plaintiff]?

'THE COURT: It is more than that. Isn't it upon a stipulation?

'MR. MORGAN: Yes, your Honor, it is.

'THE COURT: It isn't for me to decide.

'MR. MORGAN: No, I will stipulate.

'THE COURT: It is on stipulation.

'MR. MORGAN: I will stipulate that you can make a finding that at the time and place of this accident, it was an unsafe place to work. (Emphasis added.)

'MR. POPPLER: I have been instructed by Mr. Lund [Poppler's co-counsel]----

'THE COURT: Upon a stipulation that that is so--isn't it, that that is true?

'MR. MORGAN: Yes.

'THE COURT: Upon a stipulation that that is true,----

'Mr. MORGAN: That is right.

'THE COURT:--is that right?

'MR. POPPLER: I wish the record to show----

'THE COURT: Is that right?

'MR. POPPLER: Yes, sir.

'THE COURT: Upon that stipulation, I will find that it was an unsafe place to work. Is that what you want?

'MR. MORGAN: That is what I want.

'THE COURT: And you have no argument about it?

'MR. POPPLER: No, sir.

'THE COURT: Have you?

'MR. POPPLER: Yes, sir.

'THE COURT: I don't understand. I am completely miffed on what a stipulation is. Doesn't this statement that you received state you will so stipulate and that I may----

'MR. POPPLER: I so stipulate.

'* * *

'THE COURT: Upon the stipulation, I will so find.

'* * *

'THE COURT: That is the only reason I can do it and I do it upon the stipulation. * * *'

Pacific's present counsel appeared in the trial court after the verdict and petitioned the trial court to set aside its oral finding of fact based upon the stipulation; grant its lien upon plaintiff's judgment and moved that the stipulation be set aside since its attorney had no authority to make it.

In support of its petitions, Pacific filed affidavits negating Poppler's authority to make the stipulation. It averred that Poppler had been retained to protect Pacific's lien rights and the effect of the stipulation, if binding upon Pacific, was to stipulate away all of Pacific's interest in the judgment.

At the initial hearing on Pacific's petition, the trial court did set aside its oral finding of fact and the hearing was continued for argument and the submission of evidence.

At the final hearing the trial court stated: '* * * But I think that is sound [referring to the stipulation] and I don't think that we, in fairness, need to take any more evidence, and I have thought for a considerable time possibly that we should but I don't feel that way now. I think the thing should be concluded on what the people did that day and in that stipulation and I think it is binding and I will now sign the findings of fact and reinstate the findings as I orally said were, because I did it orally, in effect canceled them, I will reinstate them and sign this as of today.'

The court there upon reaffirmed its order granting respondent's motion for reduction of judgment; reinstated its previous minute order in respect of the oral finding made by the trial court; denied Pacific's motion to be relieved of the stipulation, and denied Pacific's application for first lien against the judgment.

Pacific appeals from all of said orders. ²

Pacific makes two decisive points. It urges that even if the stipulation under attack is valid, there is no finding of concurrent negligence on the part of Myers Bros. which proximately contributed to the injuries and no evidence in the record to support such a finding, and that it is therefore entitled to a lien of $5,855.40 against Harness' judgment. Respondent asserts there is such a finding, since the reduced judgment indicates an implicit assumption making the finding complete. Respondent argues that even though the finding as recited is defective, that it is clear from what the court said in its instructions to the jury, that it implicitly found that the unsafe place contributed concurrently and proximately to pl...