Lee v. Cranford
| Decision Date | 28 November 1951 |
| Citation | 237 P.2d 986,107 Cal.App.2d 677 |
| Court | California Court of Appeals Court of Appeals |
| Parties | LEE v. CRANFORD et al. Civ. 18068. |
Harold A. McCabe, Fullerton, Hammons & Willard, Ventura, for Robert W. Lee.
Edward C. Maxwell, Robert B. Maxwell, Oxnard, for R. A. Cranford.
The plaintiff below appeals from an order granting a new trial to the defendant who, in turn, appeals from the judgment entered upon the verdict of the jury which found against him.
The plaintiff, an airplane student flight instructor employed by the defendant, was severely injured as a result of the crash of an airplane owned by the defendant while it was coming in for a night landing at the Oxnard airport. At the time of the accident the plane was being piloted by a student named Jacques who was being supervised and assisted by the plaintiff. The defendant Cranford's workmen's compensation insurance failed to cover the plaintiff as an employee, and accordingly, the plaintiff was entitled to and did sue his employer, the defendant, on the theory that the defendant was negligent in supplying him with a plane that was defective and that as a proximate cause thereof the plaintiff was injured. Under the facts of this case, as they are alleged by the plaintiff, the Labor Code, sec. 3708, which is here controlling, presumes that the injury sustained by the plaintiff 'was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence.' Moreover, under the specific language of the section it 'is not a defense to the employer that the employee was guilty of contributory negligence, or assumed the risk of the hazard complained of * * *.' In short, it is plain under the language of the statute that if the evidence shows plaintiff was an employee of the defendant at the time, then any injury he sustained while in the course of business of his employer must be classed as being proximately due to the negligence of the employer and that the negligence, if any, of the employee is not a defense thereto. Accordingly, it is clear that the statute is not only operative, but likewise controlling if but two facts are proved: (1) that the plaintiff is an employee and (2) that he was injured in the course of the business of the employer as a result of the negligence of the employer. Hence, it follows that the trial court could not grant a new trial in such a case, on the ground of insufficiency of the evidence, unless the evidence was insufficient to sustain both of these grounds. In the case before us the evidence was conflicting on both grounds.
The cross-complaint by the defendant against the plaintiff as cross-defendant, alleged in the first count that the cross-defendant caused a total loss of the airplane through his negligence, and as a second count that the cross-defendant converted the plane to his own use and totally demolished it.
The motion for a new trial sets forth, in part, all of the statutory grounds for a new trial and specifically the ground that the evidence was insufficient to sustain the verdict. The argument on the motion, it appears, took the better part of a day. As the hearing was not reported, and as we declined to augment the record by permitting affidavits made subsequent to the hearing as to what occurred thereat to be made part of the record, we are confined to such facts as are set forth in the clerk's transcript.
Turning to the clerk's transcript we find what purports to be two distinct 'orders' in the case pertaining to the granting of the new trial and both made on the same day. One is a recital by the clerk in his minutes of an order purportedly made by the court and another is a separate written order signed by the judge. The clerk's minutes of the order purportedly made, so far as material, read as follows: (Italics supplied.)
The judge's signed order reads as follows:
It is at once apparent from a reading of the clerk's minutes and...
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