Johnson v. Nicholson
| Decision Date | 16 April 1958 |
| Docket Number | KETTLER--KNOLLS |
| Citation | 159 Cal.App.2d 395,324 P.2d 307 |
| Court | California Court of Appeals Court of Appeals |
| Parties | Peggy Joyce JOHNSON, Candace Louise Johnson, a minor, and Ernest Carlisle Johnson, a minor, by Peggy Joyce Johnson, their Guardian ad litem, and Peggy Joyce Johnson, Administratrix of the Estate of Ernest Carlisle Johnson, Deceased, Plaintiffs and Appellants, v. H. B. NICHOLSON, James L. Ferry and N. P. Van Valkenburgh, individually and doing business as Hal B. Hayes Construction Company; Hal B. Hayes Construction Company; Hal B. Hayes Construction Company, a corporation; Kettler-Knolls, Inc., a corporation; P. I. Wilsey, Jr., J. E. Kettler; D. W. Elliott; Alan J. Mickle and Kettler-Knolls, Inc., a corporation, Individually and doing business as Kettler-Knolls Supply Company; Kettler-Knolls Supply Company; Virgil Collier, Individually and doing business as Universal Floor Company; Universal Floor Company; Loren Conklin, Walter Mayer, Clarence E. St. George; Muroc Housing Corporation, a corporation, and Doe I to Doe X, inclusive, Defendants, Kettler-Knolls, Inc., a corporation, Hal B. Hayes Construction Company, a joint venture, Clarence E. St. George, Virgil Collier, individually and doing business as Universal Floor Company, and Loren Conklin, Respondents. Llewellyn PHILLIPS, Jr., Plaintiff and Appellant, v.CONSTRUCTION COMPANY, a corporation, Muroc Housing Corporation, a corporation, Hal B. Hayes Construction Company, a corporation, Universal Floor Company, a corporation, Clarence E. St. George, Hal B. Hayes, Loren Conklin, Walter Mayer, and Does One to Fifteen, Inclusive, Defendants, Kettler-Knolls, Inc., a corporation, Hal B. Hayes Construction Co., a joint venture, and Clarence E. St. George, Respondents. Civ. 22444. |
Clifton A. Hix and Elizabeth Hix, San Pedro, for appellant Phillips.
Demler & Eckert and Charles E. Samuel, Long Beach, for appellants Johnson.
Ball, Hunt & Hart and Clarence S. Hunt, Long Beach, for respondents Kettler-Knolls, Inc., Hal B. Hayes Const. Co., and Clarence E. St. George.
Hunter & Liljestrom and Gerald V. Barron, Los Angeles, for respondents Virgil Collier, individually and doing business as Universal Floor Co., and Loren Conklin.
Appeals from judgments of nonsuit in two actions consolidated for decision. The first action is for damages for personal injuries by Llewellyn Phillips, Jr., against defendants Kettler-Knolls, Inc., Hal B. Hayes Construction Company, Clarence E. St. George, and Loren Conklin. The second action is for wrongful death by the surviving widow and two minor children of Ernest Johnson against the same defendants and Virgil Collier. The actions arose out of the same accident; they were consolidated for trial and tried before a jury. At the conclusion of plaintiffs' cases, on motion of defendants a nonsuit was granted in each case. Judgments for defendants followed. Plaintiff Phillips appeals from the judgment in favor of Kettler-Knolls, Inc., Hal B. Hayes Construction Company, and Clarence E. St. George. Plaintiffs Johnson appeal from the judgment in favor of the same defendants and in favor of defendants Virgil Collier and Loren Conklin. 1
Kettler-Knolls, Inc., and Hal B. Hayes Construction Company were the general contracters in the construction of a housing project in Muroc, California. St. George was their employee and field superintendent of the project. The buildings under construction were duplex and quad structures.
Professional Cleaning Service was a subcontractor performing cleanup operations. The deceased, Ernest Johnson, a man 23 years of age, was its employee and in charge of employees of that service. Plaintiff Phillips was one of its employees. One of the duties of Johnson and Phillips with respect to the floors in the buildings under construction consisted in scraping and cleaning the cement slab so that it would be clean and smooth for the tile layers to lay tile thereon. Defendant Virgil Collier was the tile-laying subcontractor. Defendant Loren Conklin was an employee of Collier engaged in laying the tile. He had been employed in laying tile about 22 years.
We shall, in accordance with the rule on review of a judgment of nonsuit, state the evidence and the reasonable inferences deducible therefrom in the light most favorable to plaintiffs. The accident happened in a quad, i. e., a 4-unit apartment building known as No. 10. Johnson and Phillips first worked in No. 10 on January 7, 1953. They found that apartment 4--the one where the accident occurred--was difficult to clean; they could not get the bumps and spots off the concrete floors and get them smooth.
Phillips testified: On January 8, the day before the accident and after the floors in apartment 4 had been cleaned for the first time, St. George told him to have Johnson reclean the floors in apartment 4 because they were not clean enough for the tile layers, and to tell him to use something other than water. He relayed the message to Johnson that evening. The next morning Johnson and Phillips were together and saw St. George. Johnson went over to talk to him. He was gone about 5 minutes. After sweeping out some houses, Johnson and Phillips went to the general contractor's warehouse and storage yard to get 5 gallons of gasoline to clean the floors in apartment 4. Johnson went over to where St. George was, got the key to the gasoline tank from him, came back, unlocked the tank, and pumped 5 gallons of gasoline.
Phillips testified he had a conversation with Johnson as to what directions were given him (Johnson) by St. George. He was then asked, 'What did Mr. Johnson tell you that Mr. St. George said?' Defendants' objection was sustained.
After pumping the gasoline Phillips 'put the lid on it and carried it to the back of the car and Mr. St. George drove up at that time.' When Johnson finished pumping the gasoline he had the key in his hand; he walked over to St. George, stuck his hand in the window of St. George's car, and gave the key to the gasoline tank to St. George.
The duties of St. George were to coordinate the work between the subcontractors, tell them what he wanted done and when to do it. St. George testified that the day before the accident he told Johnson to reclean apartment 4 in No. 10; on the morning of the accident Johnson told him he was going to reclean the apartment and asked him if he could have some gasoline; he told him (Johnson) he could have it.
Johnson and Phillips went to No. 10; set the gasoline down outside; went into apartment 4; checked the gas outlets and the burners on the heaters and turned the pilot light off in a wall heater. The other outlets and pilot lights were all shut off. Phillips then started to spread the 5 gallons of gasoline and as he did so Johnson went behind him with a broom, sweeping it over the surface of the floors in apartment 4. They saw they did not have enough gasoline to cover all the floors. Phillips went to the warehouse and got another 5 gallons. The warehouseman asked him whom to charge it to; Phillips told him, the general contractor.
Phillips returned to apartment 4 with the gasoline, set it down on the front stoop, walked about 50 feet from the front door to where Johnson was sitting, and smoked a cigarette with him. Johnson had locked the back door and closed the windows of apartment 4; the front door was left 'Nearly open all the way.' The windows were closed to keep anyone from 'walking over or looking in them with a cigarette,' and the back door was locked so that no one would walk in with a cigarette. After finishing smoking Johnson and Phillips stomped out the cigarettes with their feet. They then got hand scrapers out of the car and stepped inside apartment 4 to see how it would clean off; 'it' had dissolved somewhat and scraped much easier. They began to scrape the floor in the living room. They had been scraping about three minutes when an explosion was heard in the bedroom area. When Phillips heard the explosion he looked towards the hall door and flames were coming from the general direction of the wall separating the adjoining apartment. The second can of gasoline remained on the front stoop until the time of the accident.
When Johnson and Phillips first went to apartment 4 on the morning of the accident, Phillips did not see any workmen around the building; the only cars in the area were at the end of another separate building. From the time he first went into the building until the explosion, Phillips had no knowledge anyone besides Johnson and him was working in the building. He testified he knew the tile layers 'were down in the other building because of seeing this car.' Phillips had not used gasoline before in cleaning floors, and it had never occurred to him to use it prior to the conversation Johnson had with St. George because there had not been need for it.
On the day before the accident St. George went to No. 10, found that the floors in apartment 3, the one next to where Johnson and Phillips worked, and in apartments 1 and 2 were ready for the tile; it was his job to tell the tile layers when to go in and lay the tile. Kennedy, foreman of the tile crew, had asked him to have the floors in apartment 4 recleaned. At the time and prior to the accident Kennedy was working in apartment 3. St. George knew of the danger of open flame and of open flame contacting gasoline. At no time did he say anything to Johnson or Phillips about the tile men working in apartment 1, 2, or 3 nor did he say anything to the tile men about Johnson and Phillips working in the adjacent apartment.
On the day of the accident Conklin was laying tile in apartment 3, the one adjoining the one in which Johnson and Phillips were working. Conklin was working in a bedroom closet about 2 1/2 by 4 feet, the wall of which formed the bedroom wall of the apartment in which Johnson and Phillips were working. The baseboard was not...
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