San Francisco Unified School Dist. v. California Bldg. Maintenance Co.
| Decision Date | 31 July 1958 |
| Citation | 328 P.2d 785,162 Cal.App.2d 434 |
| Court | California Court of Appeals Court of Appeals |
| Parties | SAN FRANCISCO UNIFIED SCHOOL DISTRICT, a California school district, Plaintiff and Appellant, v. CALIFORNIA BUILDING MAINTENANCE CO., a California corporation, Defendant and Respondent. Civ. 17602. |
Dion R. Holm, City Atty., George E. Baglin, Deputy City Atty., San Francisco, for appellant.
Boyd & Taylor, Frederic G. Nave, San Francisco, for respondent.
The San Francisco Unified School District appeals from a judgment of nonsuit rendered in favor of the California Building Maintenance Co.
The record shows that the Maintenance Company had a written contract with the city of San Francisco to wash the windows of many of the public buildings located in the city, including the windows of all of the city high schools. One Richard Dubay was employed by the Maintenance Company as a window washer. Dubay, while washing the windows in Galileo High School, fell and was injured when the window he was washing came loose from its fastenings. The insurance carrier of the Maintenance Company paid Dubay compensation benefits. Subsequently Dubay and this insurance carrier brought an action against the School District, alleging that it had failed to supply Dubay with a safe place in which to work. Judgments totaling over $30,000 were recovered by the two plaintiffs in that action. These judgments were satisfied by the School District paying the two plaintiffs the sum of $25,000. These judgments are final and their validity is not involved on this appeal. These judgments necessarily decided that, as between Dubay and the School District, the latter had been negligent in failing to supply Dubay a safe place in which to work.
The present action by the School District against the Maintenance Company seeks to recover from the Maintenance Company the $25,000 paid to settle the judgments of Dubay and the insurance company, and also to recover $2151.86 expended by the School District in defending against the Dubay action. The present action is one for damages for breach of contract, that is, to recover damages caused by the Maintenance Company's claimed breach of its contract with the School District. The theory of the action is that the Maintenance Company permitted Dubay to wash the window in question without adequate safety equipment and in a manner in direct violation of the terms of its contract with the School District. The Maintenance Company in its answer alleged as a first defense that the Dubay action necessarily determined that the School District was negligent; that such negligence was a proximate cause of the accident to Dubay; that Dubay was not contributively negligent; that such determinations were res judicata in this action, and that such determinations bar any recovery in the present action under the common law principle that one joint tort feasor cannot secure contribution from the other. The second defense alleged was that the Workmen's Compensation Act provides the exclusive remedy of an employee against his employer for injuries received in the course and arising out of the employment, and that to permit the School District to recover in this action would be to impose on the Maintenance Company, indirectly, liability for injuries to its employee, Dubay. The trial court granted the motion for a nonsuit.
The contract between the School District and the Maintenance Company was based upon the acceptance of a competitive bid whereby the Maintenance Company contracted and agreed to wash the windows of many of the public buildings in San Francisco for an agreed price. One of the buildings specified was the Galileo High School, a building equipped with the Hauser type of window sash. The contract contains several provisions here relevant. It required the Maintenance Company to 'furnish all labor, materials, and equipment necessary to perform in a first-class manner the work outlined.' It also provided that in school buildings all exterior windows should be 'cleaned inside and outside.' Of particular importance is the specific provision that: 'In all schools that have Hauser window sashes, stepladders must be used from inside.' It is also provided that: 'All windows broken by cleaners are to be replaced at the expense of the Contractor, and the Contractor is held responsible for payment of any and all damages resulting from his operations.'
There is ample evidence in the record to support a finding that the Maintenance Company breached this contract in the manner in which it permitted its employees to wash the windows in Galileo High School, and to support a finding that the injuries to Dubay were caused, at least in part, by such breach.
On the day Dubay was injured he was washing windows at Galileo High School. This school is equipped with Hauser windows. This is an awning-type, reversible window, about five feet in height. It opens from the bottom. The top of the window is held to the window frame by two wing bolts. Each bolt screws into a metal plate attached to the sash by three wood screws. The wing portion of each bolt rests in a slot attached to each side of the window frame. The window may be opened from the bottom and completely reversed. As the window is opened the wing portions of the two wing bolts slide down in the slots. As additional support for the window when opened, on each side of the sash, there is a metal arm, one end attached to the middle of the sash, the other to the bottom side of the window frame. As the top of the window comes down and the window reverses, the window pivots on these metal arms and on the wing bolts. The window is reversed by pushing it to a horizontal position and then hooking the end of a window pole over the bottom edge of the window and then bearing down on the pole.
Dubay testified that he pulled the window upon which he was working into a horizontal position. He then washed the window by standing on the sill and leaning out over the window. At the time of the accident his right foot was not on the sill and considerable of his weight was on the window. The wing nut sheered off when he placed his weight on the window. This caused the entire window to fall out and Dubay fell to the ground two stories below. Dubay also testified that his foreman, a Mr. Keough, did not instruct him to use a stepladder in washing these windows, nor did Keough ever give him a safety line to use while washing the windows. Dubay had not been instructed not to lean or put his weight upon a horizontally pivoted window, nor had he been instructed to use a safety device when standing or sitting on a window sill.
Keough, the foreman in charge of window cleaning for the Maintenance Company, testified that it was his duty to supply the equipment needed by the washers to perform the job in a safe manner. Mr. Vaughan was his superior. Keough was told to clean the windows and that the washers should use stepladders from the inside in washing Hauser windows. In general, he knew of the contract provisions. He also knew the safety rules applicable, and knew that his employer was required to comply with them. He knew that the safety rules required that a window washer use a safety belt and line tied to a radiator when working on a window sill from certain positions, and he admitted that he never furnished Dubay with a belt or line. He also admitted that he never told Dubay to to use the safety devices required by the rules, nor did he tell him to use a stepladder in washing Hauser windows. He knew that Dubay did not use safety devices or a stepladder. Although he was not present when Dubay fell, he knew how the windows had been washed in the past. He knew that the washer customarily leaned out from the sill with his weight upon the window to wash it, and at the time of the accident did not know that this was not proper because the windows had always been washed in that gashion. When asked as an expert on window washing whether it would not have been safer for the men, if they were to wash the windows in this fashion, to tie themselves to the radiator, he stated that it would have been.
On the other hand, Keough testified at the time of trial that it was not customary for washers of Hauser windows to use a safety line, although in a deposition he had stated that that was the custom. In his opinion it would not be safe to wash a Hauser window from a stepladder because the ladder would be too far from the window. He also stated that it was not practical for the washer to tie himself to a radiator. He admitted that he knew that he was supposed to carry out the terms of the contract, and that he knew that the terms of the contract were not being carried out. He testified that he reported to his superior, Mr. Smith, and probably to Mr. Vaughan, that ladders were not being used 'because we couldn't work off of them.'
Vaughan, general manager and vice-president of the Maintenance Company, denied that it was his function to give orders to Keough, that being the duty of Mr. Elliot, manager of the San Francisco division of the company, and denied knowing how the windows were washed. He admitted, however, knowing that it was the general practice for the washer to lower the window into a horizontal position, lean over it and wash it with his weight on the window.
A fellow workman of Dubay had washed windows at this high school and had never encountered a window not in good working condition. He was never told to wash Hauser windows from the inside from a ladder. On prior occasions he had not used a ladder or a safety line while washing such windows.
There was ample evidence that it was practical to wash the windows from the inside while on a ladder, and that it was the proper thing to use a safety line if the window was washed while the washer stood on the sill. A former safety engineer for the Division of Industrial Safety...
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