Najera v. Southern Pac. Co.

• Decision Date: 27 April 1961
• Citation: 13 Cal.Rptr. 146,191 Cal.App.2d 634
• Parties: Jullo NAJERA, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent. Civ. 19204.
• Court: California Court of Appeals Court of Appeals

Page 146

13 Cal.Rptr. 146

191 Cal.App.2d 634

Jullo NAJERA, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, a corporation, Defendant and Respondent.

Civ. 19204.

District Court of Appeal, First District, Division 1, California.

April 27, 1961.

Rehearing Denied May 19, 1961.

Hearing Denied June 21, 1961.

William T. Belcher, Jr., Oakland, for appellant.

Louis L. Phelps, G. Blandin Colburn, Jr., Dunne, Dunne & Phelps, San Francisco, for respondent.

TOBRINER, Justice.

This case raises a question of first impression in this state: is a railroad employer liable to an injured employee pursuant to the terms of the Federal Employers' Liability Act (45 U.S.C.A. 51 et seq.) for injuries proximately caused by the employer's negligent employment and retention in employment of a person of violent and dangerous propensities? Since we sustain such liability we believe that the trial court's judgment on the pleadings should be reversed and appellant allowed to submit proof of the employer's negligence and its causal relation to appellant's injuries.

Appellant employee's complaint under the Federal Employers' Liability Act alleged a breach of respondent's duty 'to provide * * * a reasonably safe place' of work in 'that defendant [respondent], its agents, servants and employees, other than plaintiff, did carelessly and negligently employ and retain in their employ a man of violent and dangerous propensities,' and 'that as a direct and proximate result of said carelessness and negligence * * * [appellant] was set upon by said violent and dangerous man receiving' injuries.

Respondent answered the complaint, admitting appellant's employment, but denying all other material allegations; respondent then moved for judgment on the pleadings on the ground that the complaint 'fails to state facts sufficient o constitute a cause of action under the Federal Employers' Liability Act * * *' The court so found and granted the motion; hence, this appeal.

Since we consider, here, a judgment on the pleadings, 'our review is limited to the question whether, under the facts pleaded, the amended complaint states the substance of a cause of action on any theory.' Byson v. City of Los Angeles, 1957, 149 Cal.App.2d 469, 472, 308 P.2d 765, 767; Seeger v. Odell, 1941, 18 Cal.2d 409, 412, 115 P.2d 977, 136 A.L.R. 1291; Rannard v. Lockheed Aircraft Corp., 1945, 26 Cal.2d 149, 151, 157 P.2d 1; 'The case is reviewed, therefore, the same as would be a judgment of dismissal entered following the sustaining of a general demurrer * * *' Gill v. Curtis Publishing Co., 1952, 38 Cal.2d 273, 275, 239 P.2d 630, 631. Hence we look to see if a cause of action 'can be inferred by reasonable intendment from the matters which are pleaded, although the allegations of these facts are intermingled with conclusions of law * * *.' Krug v. Meeham, 1952, 109 Cal.App.2d 274, 277, 240 P.2d 732, 734.

Following these liberal guide lines we view the complaint as an attempt to state a cause of action for injuries suffered by appellant when 'set upon,' during the course of his employment, by another employee, who, at the time, was employed by the employer. 'Regularly employed by defendant (respondent) as a section Foreman,' appellant on September 25, 1956, according to the complaint, engaged in work for defendant near Pinole, California. 'At said time and place' respondent owed him 'the duty of exercising ordinary care to provide plaintiff (appellant) with a reasonably safe place in which to perform his work * * *'; respondent failed in so doing 'in this': respondent 'did carelessly and negligently employ and retain in their employ a man of violent and dangerous propensities'; as a 'proximate result' of respondent's carelessness, appellant 'was set upon' by this man and received injuries.

We believe the reasonable intendment of these allegations is that the assailant was employed by the employer at the time and place of the assault; he was neither a stranger nor an employee coming back to the job site on his day off or when off duty, as respondent suggests. We accept the intendment of the pleadings that 'at said time and place' respondent 'did employ' the man as sufficient to allege respondent's employment of the aggressor at the time of the assault. Respondent did not pursue its remedy for greater specificity in the pleadings by means of a demurrer having elected to proceed by judgment on pleadings respondent should not now be in a position to impose its special and narrow interpretation upon them. Consequently, we confine ourselves to the question presented as we have explained it. If upon trial respondent were to prove that the assailant was not in the employ of respondent at the time of the assault, the trial court would face different questions of causation and liability from those we consider here.

The touchstone of liability in this matter is section 51 of the Federal Employers' Liability Act (45 U.S.C.A. § 51 et seq.), which provides in part, as follows: 'Every common carrier by railroad * * * [while engaging in interstate commerce] shall be liable in damages to any person suffering injury while he is employed by such carrier in such commerce * * * for such injury * * * resulting in whole or in part from the negligence of any of the officers, agents, or employees of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.' (§ 51.) Because the railroad negligently employed 'a man of violent and dangerous propensities' and the injury suffered by appellant resulted from such negligent employment, appellant contends that the statute fastens liability upon respondent.

We do not believe, however, that the federal cases applying this section should be the only cases which we review. We cannot overlook the fact that we are deciding here the liability of an employer for the commission of an alleged tort. Certainly, in view of the history and purpose of FELA, a determination of whether the alleged wrongful action constituted a common law tort must be important. We think, too, that it is relevant to inquire into the liability of employers for comparable injuries to seamen. We recognize that seamen fall under a special statute and historically occupy a unique status, but we shall point out that a special status likewise is emerging for employees in general. After this background survey we shall probe the United States Supreme Court and federal cases on FELA. We shall conclude with a brief summary of the state cases.

The cases hold that the knowing employment of a dangerous employee who inflicts injury upon a fellow employee constitutes a common law tort on the part of of the employer. Indeed the employer railroad at common law owed a duty to its employees to use 'reasonable care * * * in the selection of competent fellow servants, and in the retention in his service of none but those who are. * * *' Norfolk & West. R. Co. v. Hoover, 1894, 79 Md. 253, 29 A. 994, 995, 25 L.R.A. 710; quoted in Missouri, K. & T. Ry. Co. of Texas v. Day, 1911, 104 Tex. 237, 136 S.W. 435, 439, 34 L.R.A.,N.S., 111; accord, Gilman v. Eastern R. Corp., 1865, 10 Allen 233, 238, 92 Mass. 233, 238. Moreover, 'there could be no difference whether the injury result from negligence in doing the master's work, or from an assault made by a dangerous, drunken, and desperate employe, if his reputation was such that the master might reasonably have foreseen such consequences.' Missouri, K. & T. Ry. Co. v. Day, supra, 136 S.W. 435, 440. In that case the employee of the railroad, who was known to be quarrelsome and quick-tempered as well as a 'drinking man,' assaulted a fellow employee. The court considered two questions: (1) whether the railroad was negligent in 'employing and retaining' the assaulter, and (2) whether the acts of the employee could be imputed to the railroad. Denying liability on the doctrine of respondeat superior the court submitted the case to the jury on the theory of the employer's negligent hiring and retention of the employee. ¹

Other authorities, including the Restatements of Agency and Torts, recognize the employer's duty as to the proper selection of his employees. Section 213 of Agency, Second, states: 'A person conducting an activity through servants or other agents is subject to liability for harm resulting from his conduct if he is negligent or reckless: * * * (b) in the employment of improper persons. * * *' The comment under that section declares further: 'An agent, although otherwise competent, may be incompetent because of his reckless or vicious disposition, and if a principal, without exercising due care in selection, employs a vicious person to do an act which necessarily brings him in contact with others while in the performance of a duty, he is subject to liability for harm caused by the vicious propensity. * * *' (Comment d.)

The Restatement of Torts enunciates this rule as to the employer's direct negligence in section 317: 'A master is under a duty to exercise reasonable care so to control his servant while acting outside the course of his employment as to prevent his from intentionally harming others * * * if (a) the servant (i) is upon the premises in possession of the master * * *, and (b) the master (i) knows or has reason to know that he has the ability to control his servant, and (ii) knows or should know of the necessity and opportunity for exercising such control.' ²

We cannot overlook the anomaly of the recognition of the tortious impact of respondent's alleged conduct at common law ³ and respondent's claimed immunity as to the same conduct under FELA. In eliminating as bars to recovery the application of the fellow servant doctrine, the assumption of the risk and contributory negligence, the Act sought an enhanced, and not reduced, protection for railroad employees. And yet the strange result of respondent's...