Morgan v. Stubblefield, Nos. 36004

CourtCalifornia Court of Appeals
Writing for the CourtDUNN; Associated further contends that to require it to comply with safety orders, as an 'employer' of plaintiffs, would deprive it of equal protection of the law. It argues that so to hold would place upon it the burdens of an employer without its r
Citation17 Cal.App.3d 286,94 Cal.Rptr. 754
PartiesEarl MORGAN and Frederic J. Saetelle, Plaintiffs and Respondents, v. Carl STUBBLEFIELD and William Butler, individually and as partners, doing business as Able Equipment Rental, Defendants, Cross-Complainants and Appellants, Associated Construction and Engineering Company, Inc., Defendant, Cross-Complainant, Appellant and Respondent, William H. Smith, individually and doing business as Aaron Electric Company, Cross-Defendant, Appellant and Respondent.
Decision Date30 April 1971
Docket NumberNos. 36004,36035

Page 754

94 Cal.Rptr. 754
17 Cal.App.3d 286
Earl MORGAN and Frederic J. Saetelle, Plaintiffs and Respondents,
v.
Carl STUBBLEFIELD and William Butler, individually and as partners, doing business as Able Equipment Rental, Defendants, Cross-Complainants and Appellants,
Associated Construction and Engineering Company, Inc., Defendant, Cross-Complainant, Appellant and Respondent,
William H. Smith, individually and doing business as Aaron Electric Company, Cross-Defendant, Appellant and Respondent.
Nos. 36004, 36035.
Court of Appeal, Second District, Division 4, California.
April 30, 1971.
Rehearing Denied May 17, 1971.
For Opinion or Hearing, see 100 Cal.Rptr. 1, 493 P.2d 465.

Page 758

George A. Kuittinen and Abe Mutchnik, Los Angeles, for defendants, cross complainants and appellants Stubblefield and Butler dba Able Equipment Rental.

Gilbert, Thompson, Kelly, Crowley & Jennett, W. I. Gilbert, Jr., and Wunderlich, Los Angeles, for Associated Construction and Engineering Company, Inc., defendant, cross complainant, appellant and respondent.

McBain & Morgan, Angus C. McBain and Elmer O. Docken, Los Angeles, for William H. Smith dba Aaron Electric Company, cross defendant, appellant and respondent.

Pray, Price, Williams & Russell, William A. Williams, Long Beach, and Henry F. Walker, Los Angeles, for plaintiffs and respondents.

DUNN, Associate Justice.

These appeals are taken from judgments entered in two consolidated actions for personal injuries entitled: Morgan v. Associated Construction & Engineering Company, Inc., et al. (L. A. Superior Court No. SOC-12176) and Saetelle v. Associated Construction & Engineering Company, Inc., et al. (L. A. Superior Court No. SOC-11640).

Associated, as general contractor, had contracted to erect for Consolidated Food Corp. its 'Shasta Beverage' building in La Mirada, California. William H. Smith, doing business as 'Aaron Electric Company' (herein 'Aaron') performed electric work on the job under subcontract with Associated. Plaintiffs were electricians employed by Aaron at the time of the accident. They were injured when they toppled from a scaffold which Aaron had rented from Carl Stubblefield and William Butler, partners, doing business as 'Able Equipment Rental' (herein 'Able').

The plaintiffs sued Associated, Able and Consolidated Food Corp. (The latter defendant obtained judgments of nonsuit and is not involved in these appeals.) Able cross-complained against Aaron in each case, seeking indemnity from Aaron based upon terms of a written agreement between them covering rental of the scaffold. Associated also filed cross complaints, naming Aaron and Able as cross defendants. Through these, Associated sought indemnity from Aaron under the terms of the written agreement between them, and from both Aaron and Able on allegations that Associated's negligence, if any, was secondary to that of Aaron and Able in causing injuries to the plaintiffs. (Able's motion for nonsuit as this cross complaint was granted. Associated has not appealed from that ruling.)

Trial before a jury resulted in verdicts and judgments for each plaintiff against Associated and Able, and in favor of Associated against Aaron on Associated's cross complaints for indemnity. Judgments were in favor of Aaron on Able's cross complaints for indemnity.

Defendants Associated and Able appeal from the judgments for plaintiffs. Able also appeals from the court's orders denying its motions for judgments n. o. v. and additionally appeals from the judgments favoring Aaron on Able's cross complaints against Aaron indemnity. Aaron appeals from the judgments favoring Associated on the latter's cross complaints, and from the court's orders denying Aaron's motions for judgments n. o. v. and for a new trial 1 as to such cross complaints.

I. Appeals Of Associated and Able As Defendants.

We will first consider the appeals of defendants Associated and Able from the judgments favoring plaintiffs.

Among other matters argued, Associated contends the evidence is, as a matter

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of law, insufficient to establish negligence or proximate causation on its part. The evidence on liability as to each plaintiff is substantially the same. We will briefly summarize it. Wherever any conflict exists in the evidence or inferences to be drawn from if, we adopt that evience favoring the judgments and ignore conflicts, as we are required to do on such appeals. (Crawford v. Southern Pacific Co., 3 Cal.2d 427, 429, 45 P.2d 183 [1935].)

The accident occurred December 17, 1964, during morning hours. On December 7th, Able had rented to Aaron the scaffold involved. It was delivered unassembled and was put together by plaintiffs and their fellow employees. A writing entitled 'Contract' accompanied the unassembled parts; it was signed by William H. Smith for Aaron and returned to Able. This described the scaffold (two identical scaffolds actually were ordered and delivered as 19 feet high, but witnesses approximated the height at 17 feet, plus guardrails. It was 10 feet long and 5 feet wide, its dimensions apparently being uniform from top to bottom. There were 4 rubber-tired caster wheels, each with an 8 inch outside diameter.

The building under construction was approximately 500 feet long and 300 feet wide, with an arched ceiling varying from 20 to 24 feet in height above the cement floor. Pillars or columns located approximately 20 feet apart, supported the roof structure.

Associated had created a hole in the concrete, anticipating installation of the base for a stairway, not yet constructed. This hole was approximately a foot square and a foot deep, and is the hole involved in the accident. It was 'out in the middle of the floor,' between the columns. Neither plaintiff was aware of this hole. No cover was on the hole at the time of the accident and none had been there for some time. A piece of plywood covered it at times, but it would slide and and easily could be kicked off.

The plaintiffs worked on top of the scaffold, affixing an electric conduit to the underside of the roof. A fellow employee, Freeman Metzger, assisted them from the ground by moving the scaffold and procuring needed materials. He was aware of the uncovered hole. At the time of the accident, plaintiffs had sent Metzger to get material for them. At the time he left, the hole was approximately 6 feet away from the nearest wheel of the scaffold and did not lie in the direction the work was progressing. The scaffold's wheels were equipped with individual brakes which would lock them but, when Metzger left, the wheels were not locked. The floor was level concrete and 'a little rough.' When Metzger was 200 feet or more away the scaffold fell; one of its wheels had got over the hole, permitting the scaffold to tilt and topple.

Windows and some large doors permitted daylight to enter the structure, but there was no artificial illumination inside. The natural light was sufficient for plaintiffs to work by.

Plaintiffs based their claims against Associated upon two grounds, namely: (1) that Associated negligently created and maintained the hole; and (2) negligently provided insufficient illumination, thereby creating an unsafe place which to work.

The trial court instructed the jury on the common law duties of a general contractor. Additionally, it instructed the jury that a violation by Associated of two specified safety orders could constitute negligence. The first such was Industrial Safety Order No. 3242, reading in part: 'Illumination. Working areas shall be provided with either natural or artificial illumination which is adequate and suitable to secure the safety of employees.' The second was Industrial Safety Order No. 1620 reading in part: 'All planks, railings, or barriers guarding floor, roof, or wall openings shall be left in place until further construction provides permanent protection or an effective hazard

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control. Work shall be arranged so that openings are left unprotected for the least time possible during the transition from temporary to permanent safeguards.'

Associated contends: (a) there was no evidence to establish Associated as an 'employer' to whom such safety orders would be applicable; (b) there was no evidence to establish its violation of either safety order; (c) that permitting Associated to be held as an 'employer' of plaintiffs deprived it of equal protection under the pertinent provisions of the Constitution and, finally, (d) there was no evidence to show that violation of either order was a proximate of the accident.

The evidence was sufficient to hold Associated negligent toward plaintiffs on common law tenets. Thus, as to the hole: 'If as the generalissimo of a construction job, the general contractor leaves holes in the floor * * * whereby any invitee might suffer injury, of course he would be liable.' (Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 269, 246 P.2d 716, 720 [1952]. And see: Kuntz v. Del E. Webb Constr. Co., 57 Cal.2d 100, 104-105, 18 Cal.Rptr. 527, 368 P.2d 127 [1961].) 2 The same common law rule would support a finding of negligence when inadequate lighting or other conditions create a hazard to persons on premises under control of a general contractor. Associated reasonably should have foreseen that a hole, located as was this, created a hazard. The evidence was sufficient to support a conclusion that the hole was not readily apparent because of a camouflage condition (Touhy v. Owl Drug Co., 6 Cal.App.2d 64, 44 P.2d 405 [1953]) as revealed by photographs in evidence, because of inadequate lighting (Johnson v. De La Guerra Properties, Inc., 28 Cal.2d 394, 400-401, 170 P.2d 5 [1946]) or because of a combination of both factors.

Instructions given at plaintiffs' request present not common law negligence, but negligence based upon violations of safety orders. Safety Order No. 3242 related to illumination and No. 1620 to the guarding of holes in floors. In contending they are inapplicable,...

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