Johnson v. A. Schilling & Co.

• Decision Date: 24 July 1961
• Citation: 14 Cal.Rptr. 684,194 Cal.App.2d 123
• Court: California Court of Appeals Court of Appeals
• Parties: William JOHNSON, Plaintiff and Respondent. v. A. SCHILLING & COMPANY, a corporation, and McCormick & Company, Inc., a corporation, Defendants and Appellants. Civ. 19465.

Page 684

14 Cal.Rptr. 684

194 Cal.App.2d 123

William JOHNSON, Plaintiff and Respondent. v. A. SCHILLING & COMPANY, a corporation, and McCormick & Company, Inc., a corporation, Defendants and Appellants.

Civ. 19465.

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

July 24, 1961.

Rehearing Denied Aug. 23, 1961.

Hearing Denied Sept. 20, 1961.

Boyd, Taylor, Nave & Flageollet, San Francisco, Herbert Chamberlin, San Francisco, of counsel, for appellants.

Jack H. Werchick, San Francisco, for respondent.

SHOEMAKER, Justice.

This is an appeal by defendants from a judgment for plaintiff in a personal injury action, and from the order denying their motion for judgment notwithstanding the verdict.

Plaintiff was a sheet metal worker employed by East Bay Sheet Metal Company. That company had a contract to perform repairs on the roof of a building owned by defendants A. Schilling & Company and McCormick & Company, Inc. The roof was of corrugated iron with an 18-degree pitch and had been constructed in 1938. On December 21, 1953, plaintiff was instructed by his foreman to install flashings around a skylight on this roof. When plaintiff had been on the roof for about an hour, he started to walk to the top of the roof to get certain tools and material. Plaintiff, in a bent-over position, had taken about three or four steps when he slightly lost his balance and, in an attempt to steady himself, reached out for the frame of the skylight. His hand missed the frame, however, and rested on a glass pane of the skylight which was already cracked and which broke under his weight so that he fell through the skylight and suffered the injuries of which he complains.

The judgment appealed from was entered after the fourth trial of this cause. A judgment entered after the second trial was reversed by this court. Johnson v. A. Schilling & Co., 1959, 170 Cal.App.2d 318, 339 P.2d 139.

Appellants' contentions are two: (1) that the evidence was insufficient to support the judgment; and (2) that the trial court committed prejudicial error in giving certain instructions and in refusing to give other instructions.

We first consider the question of whether the evidence was sufficient to support the judgment. Since this case has already been once before this court and since appellants and respondent are in substantial disagreement as to the points decided on the prior appeal, reference must be made to the text of this opinion, which sets forth the law of the case. In Johnson v. A. Schilling & Co., supra, plaintiff appealed from a directed verdict for defendants. The question thus before the court was whether there was any evidence or offer of proof sufficient to support a judgment for plaintiff. Plaintiff-appellant's argument for reversal was (1) that the evidence and offer of proof would sustain a judgment against defendant on the common-law liability of an owner to an invitee, and (2) that the trial court erred in ruling that defendants were not liable as an 'employer' under Labor Code, sections 6304, 6400 and 6401. The court ruled in favor of plaintiff-appellant on both these points.

The court first held that there was sufficient evidence to establish defendants' liability as invitors, since a jury could have found that a latent defect existed on the premises when they were turned over to the contractor. There was evidence that a space between the roof and its supports caused the roof to be unstable. Since this defect was readily observable from the interior of the building and could not be seen from the roof, it could thus have constituted a dangerous condition of which defendant landowners knew and which was not obvious to the invitee. Under these circumstances, there would be a resultant duty to warn the invitee, and a resultant liability for failure to do so.

Although the court indicated that this ground alone was sufficient to compel a reversal, the court stated that the necessities of a new trial required consideration of the other question as well.

The court then stated:

'Section 6302, Labor Code, defines 'place of employment' as 'any place, and the premises appurtenant thereto, where employment is carried on * * *.' Section 6304 reads: "Employer' shall have the same meaning as in section 3300 and shall also include every person having direction, management, control, or custody of any employment, place of employment, or any employee.' (Emphasis ours.) This definition is obviously intended to enlarge the meaning of 'employer' beyond its usual meaning for the purposes of Division 5 of the Labor Code in which it is found and which deals specifically with 'Safety In Employment.' Where an owner of real property contracts to have work done on his property such property becomes a place 'where employment is carried on' and hence a place of employment under the definition of section 6302. Since the owner has 'custody and control' of his own property, he then has custody and control of a 'place of employment' and hence is an 'employer' within the definition of section 6304. * * *' Johnson v. A. Schilling & Co., supra, 170 Cal.App.2d at page 322, 339 P.2d at page 141.

The court further stated:

'We are satisfied that as to unsafe conditions of employment which exist in the place of employment at the time that it is turned over by the owner to an independent contractor the owner is an 'employer' within the meaning of Labor Code, section 6304. This being so the owner's duties as 'employer' under 6304 were obviously greater than his common-law duties as invitor to an invitee. As 'employer' under that section he was obliged under section 6400, Labor Code, to furnish a place of employment which was 'safe for the employees therein.'

This is a statutory duty which cannot be satisfied by mere warning or obviousness, those questions going only to the question of the injured party's contributory negligence. [Citation].' 170 Cal.App.2d at page 324, 339 P.2d at page 142.

The court also stated that all evidence of the unsafe condition of the roof at the time it was turned over to the contractor would be relevant as to the 'employer's' standard of care. Specific reference was made to 'the cracked and unsafe condition of the glass in the skylight' and whether there should have been guard railings around the skylights (170 Cal.App.2d at page 324, 339 P.2d at page 142.)

Appellants argue, however, that this court need not be controlled by the law of the case as set forth on the prior appeal; that the Labor Code sections setting forth the duty of an 'employer' should not be interpreted as applying to owners such as appellants who merely hired an independent contractor to do work on their premises. Although the law of the case need not invariably be followed on a second appeal, appellants fail to point out any difference between the facts presented at this trial and the prior trial which would make the Labor Code sections less applicable. Furthermore, the interpretation set forth on the prior appeal was in accord with previous cases construing the sections. Maia v. Security Lumber & Concrete Co., 1958, 160 Cal.App.2d 16, 324 P.2d 657; Atherley v. MacDonald, Young and Nelson, 1956, 142 Cal.App.2d 575, 298 P.2d 700.

The judgment appealed from must be upheld if there was sufficient evidence presented at the last trial which would support either of the two theories of liability approved on the prior appeal. Appellants first discuss the question that there was no evidence sufficient to sustain a finding that appellants breached their duty as invitors by failing to warn respondent of a latent defect. Since the court expressly held on the prior appeal that appellants' liability was to be governed by the higher standard of care set forth by the Labor Code sections applicable to an 'employer,' the real question to be determined on this appeal is whether appellants' conduct fell below this standard. If the evidence is sufficient to sustain a finding to this effect, the judgment must still be upheld regardless of whether there is sufficient evidence that appellants breached their duty as invitors.

The court, on the prior appeal of this case, stated that 'as to unsafe conditions of employment which exist in the place of employment at the time that it is turned over by the owner to an independent contractor the owner is an 'employer' within the meaning of Labor Code, section 6304. * * * As 'employer' under that section he was obliged under section 6400, Labor Code to furnish a place of employment which was 'safe for the employees therein.' This is a statutory duty which cannot be satisfied by mere warning or obviousness * * *.' Johnson v. A. Schilling & Co., supra, 170 Cal.App.2d at page 324, 339 P.2d at page 142.

The evidence at the last trial established that appellants owned the premises where the accident occurred and that they employed independent contractors to do work on these premises. Since appellants' building was thus a 'place of employment' under section 6302 of the Labor Code, appellants were an 'employer' and obliged, under section 6400 of the Labor Code, to see that the premises were 'safe for the employees therein.' We are satisfied that there was sufficient evidence that appellants' premises, when turned over to the independent contractor, contained conditions which made them unsafe for employees, for the record discloses that the roof was steep; that it was flexible, waving and unsteady when walked upon; and that this condition of the roof was due to the way in which it had originally been constructed. There was also evidence that the glass in the skylight was cracked and had been so for a long time prior to the accident; that the skylight had only a 1 1/2"' curb on it, and that the curb should have been one foot high to indicate that an opening existed and to prevent a person from stepping into it; in addition, there was evidence that in order for the roof to be safe for workmen, in its then condition, there should...