Johnson v. Cal-West Const. Co., CAL-WEST

• Decision Date: 13 June 1962
• Docket Number: CAL-WEST
• Citation: 22 Cal.Rptr. 492,204 Cal.App.2d 610
• Parties: Joyce JOHNSON, etc., et al., Plaintiffs and Appellants, v.CONSTRUCTION CO., W. J. O'Neal and Louis M. Bailey, Defendants and Respondents. Civ. 25592.
• Court: California Court of Appeals Court of Appeals

Page 492

22 Cal.Rptr. 492

204 Cal.App.2d 610

Joyce JOHNSON, etc., et al., Plaintiffs and Appellants, v. CAL-WEST CONSTRUCTION CO., W. J. O'Neal and Louis M. Bailey, Defendants and Respondents.

Civ. 25592.

District Court of Appeal, Second District, Division 3, California.

June 13, 1962.

Wyman, Finell & Rothman and Marvin Finell, Beverly Hills, for appellants.

Cushman & Grover, Henry E. Kappler, Los Angeles, for respondents.

SHINN, Presiding Justice.

This action was brought by the surviving wife and children of John Johnson for the recovery of damages resulting from the death of Mr. Johnson in a fall from scaffolding. It was alleged that the accident was due to the defective and dangerous condition of the scaffolding. Named as defendants were Carl Cotrell, Daniel Sifling, Grace Smith, Cal-West Construction Company, a partnership, W. J. O'Neal and Louis M. Bailey. Cotrell paid $6,000 for a covenant not to sue. The action was dismissed as to certain defendants and proceeded to trial only against Cal-West, O'Neal and Bailey. Plaintiffs appeal from a judgment on verdict in favor of these defendants.

Error is assigned in the instructions that were given and the claimed refusal to admit in evidence certain safety orders of the Department of Industrial Relations, Division of Industrial Safety, with respect to the construction of the scaffolding.

It was established that O'Neal and Bailey as co-partners of Cal-West entered into an agreement to construct an apartment building upon the land of Grace Smith in Covina. The plastering and lathing was sublet by contract to Cotrell, who sublet the lathing to defendant Sifling, who employed Johnson as foreman on the lathing job. Cotrell constructed scaffolding around the building. Johnson, while engaged in lathing, fell fron the scaffolding and suffered fatal injuries. It was and is the theory of plaintiffs that the cause of Johnson's fall was some unsafe condition of the scaffolding.

It was established by uncontradicted evidence that Cal-West did not construct the scaffold or furnish any material for the same, did not retain any control over the scaffolding or over the work done under the subcontract to Cotrell and did not in any particular undertake to direct the manner in which the scaffolding would be constructed or maintained or the lathing or plastering would be carried on. The sole interest of Cal-West was to see that the work was done and finished in accordance with its contract with Cotrell.

The court gave the instructions that are set out in the margin. ¹ Those numbered 1 and 3 were given on the court's own motion, No. 2 at the request of defendants. The instructions were correct statements of the law.

Plaintiffs contend that it was the duty of Cal-West to furnish for Johnson a safe place to work, that the scaffolding was shaky and unsafe, which fact Cal-West would have discovered in the exercise of ordinary care, and that Cal-West neglected its duty to inspect the scaffolding and to see that it was properly constructed and maintained. In brief, the contention is that a general contractor, under all circumstances, has a duty to provide, or see that there are provided, safe conditions for work of the employees of subcontractors; the duty of the general contractor is the same as that of the subcontractor toward the employees of the latter, and he is bound to exercise ordinary care to see that his subcontractors have furnished their workmen with safe places for work.

Plaintiffs concede that the contentions they make were rejected by the court in Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 246 P.2d 716. It was there held that in the absence of actual knowledge possessed by a general contractor of a dangerous condition created in the course of work, over which he had no control or supervision, there was no authority for adjudging him liable for injuries suffered by a workman in the employ of a subcontractor on a construction job, caused by a fall from a defective scaffold which had been made and supplied by the subcontractor alone. Plaintiffs contend that the decision in Hard has been overruled by other cases, namely, Austin v. Riverside Portland Cement Co., 44 Cal.2d 225, 282 P.2d 69, Gonzales v. Robert J. Hiller Const. Co., 179 Cal.App.2d 522, 3 Cal.Rptr. 832 and Revels v. Southern Cal. Edison Co., 113...