Mason v. Case

• Decision Date: 13 September 1963
• Citation: 220 Cal.App.2d 170,33 Cal.Rptr. 710
• Parties: Ted MASON, Plaintiff and Appellant, v. Jack CASE et al., Defendants and Respondents. Civ. 10556.
• Court: California Court of Appeals Court of Appeals

Page 710

33 Cal.Rptr. 710

220 Cal.App.2d 170

Ted MASON, Plaintiff and Appellant, v. Jack CASE et al., Defendants and Respondents.

Civ. 10556.

District Court of Appeal, Third District, California.

Sept. 13, 1963.

P. M. Barceloux, Burton J. Goldstein; Goldstein, Barceloux & Goldstein, Chico, for appellant.

Rich, Fuidge, Dawson & Marsh, Marysville, and John L. Feency, Willows, for respondents.

FRIEDMAN, Justice.

Plaintiff Ted Mason was injured in the course of his employment as a mechanic with Westside Tractor Company. He filed this common law negligence action against Jack Case, vice president of the firm, and Herbert Kattenhorn, the shop foreman. There was a jury verdict in favor of both defendants and Mason appeals.

Effective in September 1959 section 3601 of the Labor Code was amended to ban negligence actions between employees in cases where workmen's compensation is available. (Stats.1959, ch. 1189.) Mason's accident antedated the amendment and is not affected by it.

Mason was a mechanic and machinist with approximately 20 years of experience. His injury occurred during his second day on the job at Westside Tractor Company. He had been interviewed and employed by Kattenhorn, the shop foreman, and had been assigned by Kattenhorn to adjust and refasten the tracks of the shop's overhead crane. These tracks were affixed to horizontal beams and ran paralled to the east and west walls of the shop. These walls were approximately 120 feet long. Kattenhorn discussed the job with Mason and showed him the location of a sectional ladder which Mason could use in the course of his work. Kattenhorn told Mason that in order to keep the tracks properly aligned he should work from one track to the other as he worked down the length of the tracks. Kattenhorn assigned another employee, one Moore, to help Mason. Mason was present when Moore received his instructions and knew that Moore was simply told to 'give him a hand.'

The job required Mason to use a drill press in the fabrication of metal washers to be used with lag screws in fastening down the rails. Mason fabricated the washers and then went to get the ladder which was leaning against a wall. The ladder was an extension ladder composed of two sections, each approximately 14 feet long. As they stood against the wall, the two sections were separated. The lower section of the ladder was fitted with 4/5-inch metal overhands in the proximity of its top rung, and these overhangs would have fitted over the horizontal beams. Mason, however, selected the top section of the ladder, which had no such metal fittings.

The ladder was first used on the west wall in one location and them moved to the east wall. Moore, Mason's helper, placed the ladder against the east wall just north of the drill press which Mason had used earlier. The shop floor was level rough concrete. When Mason mounted the ladder, it slipped downward and he fell, suffering the injuries for which he sues. As the ladder slipped it left vertical gouge marks on the wall and slip marks on the floor, the latter being three to five feet long. There is no direct evidence of the cause of the slippage. Mason testified that after the accident he noticed metal drill filings and oil on the floor in that area. Other witnesses denied seeing oil or filings. Mason was the only one in the shop who had used the drill press on that date. There was a shop custom that each employee whose work created a litter on the floor would clean up that litter, brooms and rags being available for that purpose. There is no indication that Mason was aware of the custom.

At the time the ladder slipped Moore was standing close to its base. Mason testified that he assumed Moore was holding the ladder. Moore had not held the ladder when Mason had climbed it previously, and Mason had not instructed him to do so.

Theory of plaintiff's action is that Case and Kattenhorn were supervisory employers who had responsibility for equipment supplied to employees and who 'so negligently performed their duties as to permit the ladder to slip, break and fall. * * *' Embodied in instructions to the jury were certain Labor Code sections and a safety order of the state Division of Industrial Safety. Section 6304 of the Labor Code provides that 'employer' shall include 'every person having direction, management, control, or custody of any employment, place of employment, or any employee.' Every employer must furnish employment and a place of employment which are safe for the employees. (Sec. 6400.) He 'shall furnish and use safety devices and safe-guards, and shall adopt and use practices, means, methods, operations, and processes which are reasonably adequate to render such employment and place of employment safe. Every employer shall do every other thing reasonably necessary to protect the life and safety of employees.' (Sec. 6401.) No employer shall require or permit any employee to be in any employment or place of employment which is not safe (sec. 6402); nor shall he fail or neglect to provide and use safety devices and safeguards or to adopt and use methods and processes reasonably adequate to render the employment and place of employment safe or to do every other thing reasonably necessary to protect the life and safety of employees (Sec. 6403.)

The safety order provides in part, 'Where there is a danger of a portable ladder slipping in use, provision shall be made to secure the ladder in position by use of hooks, ropes, scabs, spikes, cleats, or by other antislip devices, or by stationing an employee at the base of the ladder to hold it in position during use.' (Gen'l. Ind. Safety Order No. 3362, Div. of Ind. Safety, tit. 8, Cal.Adm.Code, sec. 3362.)

Before turning to the issues raised by plaintiff's appeal, we consider a defense contention that Case is not personally liable as a matter law, not being an 'employer' as defined by section 6304. Case was sales manager and vice president of Westside Tractor Company. He exercised no management or control over the shop, being concerned with sales activity. Although as a corporate officer he had the power to discharge Kattenhorn and to review the economics of shop operation, at no time did he give any orders as to shop operation. Kattenhorn was 'in full charge of the shop,' did all hiring and firing and assigned work to shop personnel. There was no evidence that Case actively participated in the occurrences leading up to the accident, or that he violated any common law duty of care. Case's situation falls directly within the rule of Towt v. Pope, 168 Cal.App.2d 520, 336 P.2d 276. In effect, Towt holds that section 6304 was not designed to impose personal liability for violation of plant safety requirements upon a corporate officer who is outside the chain of responsibility for the company actively in which the accident occurs. Case was outside that chain of responsibility. To paraphrase section 6304, he had no direction, management, control or custody of the shop or over Mason's employment. Thus he was not an 'employer' as defined by the statute and, as a matter of law, incurred no personal liability to plaintiff. (Cf. Jackson v. Georgia-Pacific, Inc., 195 Cal.App.2d 412, 15 Cal.Rptr. 680; Cravens v. Kurtz, 210 Cal.App.2d 810, 26 Cal.Rptr. 802.)

Principal error urged on appeal is the trial court's action in submitting the issue of Mason's contributory negligence to the jury. An established rule of public policy excludes the somewhat analogous defense of assumpton of risk in actions based on violation of safety statutes or safety orders adopted for the protection of employees. (Finnegan v. Royal Realty Co., 35 Cal.2d 409, 430-431, 218 P.2d 17; McAllister v. Cummings, 191 Cal.App.2d 1, 11, 12 Cal.Rptr. 418; Martin v. Stone, 187 Cal.App.2d 726, 730, 10 Cal.Rptr. 184; Atherley v. MacDonald, Young & Nelson, 142 Cal.App.2d 575, 587, 298 P.2d 700.) Counsel for Mason earnestly contend that the same public policy considerations should exclude the defense of contributory negligence.

The assumption of risk defense, although similar in some respects to contributory negligence, has a marked difference. Contributory negligence consists essentially of lack of care; assumption of risk arises regardless of care. The latter is based essentially on consent which, in turn, requires evidence that the victim had knowledge of the specific risk. (Vierra v. Fifth Avenue Rental Service, 60 A.C. 215, 220, 32 Cal.Rptr. 193, 383 P.2d 777.) Where an employee sues for injury caused by violation of a safety statute or safety order, public policy insists that the plaintiff's acquiescence or knowledge should not insulate the defendant from liability for his violation. The rationale is that the employees is in a weak economic position, that he is unable to risk refusal to work in an unsafe place or with an unsafe appliance, hence should not be held to the penalty imposed on one who acquiesces in a danger. (Finnegan v. Royal Realty Co., supra, 35 Cal.2d at p. 431, 218 P.2d at p. 30.)

Contributory negligence, in distinction, is not a matter of waiver or acquiescence. Consequently the public policy which bars assumption of the risk does not apply with equal force to exclude the defense of contributory negligence. So far as the question is an open one, in the domain of a California public policy which has not yet been enunciated, there is much to be said for the notion that an employee may acquiesce in working in an unsafe place or with unsafe equipment and yet be called upon to act with as much care for his own safety as is reasonable under the circumstances. It is difficult in any event to conceive of a public policy which makes the employee's foreman personally liable to his subordinate when the latter has failed to use such reasonable care for his own safety as the circumstances permit.

The problem, however, is broader and wider than the narrow (and now almost obsolete) class of negligence suits between fellow employees. It...