Souza v. Pratico

• Decision Date: 18 October 1966
• Citation: 54 Cal.Rptr. 159,245 Cal.App.2d 651
• Court: California Court of Appeals Court of Appeals
• Parties: Manuel SOUZA, Cross-Complainant and Respondent, v. John PRATICO and California Compensation and Fire Company, a corporation, Cross-Defendants and Appellants. Civ. 23051. Division 1, California

Page 159

54 Cal.Rptr. 159

245 Cal.App.2d 651

Manuel SOUZA, Cross-Complainant and Respondent, v. John PRATICO and California Compensation and Fire Company, a corporation, Cross-Defendants and Appellants.

Civ. 23051.

District Court of Appeal, First District,

Division 1, California.

Oct. 18, 1966.

John R. Lamoreaux, Salinas, for appellants.

Wines & Bonney, by B. K. Wines, San Jose, for respondent.

SULLIVAN, Presiding Justice.

Plaintiff Anthony Polisso, an employee of defendant and appellant John Pratico, a masonry subcontractor, was injured on April 17, 1963 at a construction site in San Jose. He commenced this action for damages for personal injuries against defendant and cross-complainant Manuel Souza, the general contractor of the job, and against other defendants later dismissed. The gist of the complaint was that Souza so negligently and carelessly owned, operated, maintained, supervised, inspected and controlled the construction operations as to cause plaintiff's injuries. Polisso did not join his employer as a defendant.

Souza filed an answer denying all material allegations of the complaint and in addition a cross-complaint against Pratico and cross-defendant and appellant California Compensation and Fire Company (California Compensation), Pratico's workmen's compensation insurance carrier. The gist of the cross-complaint was that Polisso's injuries were proximately caused by the negligence and carelessness of his employer Pratico and that any judgment recovered by Polisso against Souza should be reduced by the amounts of workmen's compensation benefits paid to or on behalf of plaintiff by California Compensation. The above cross-defendants filed a joint answer to the cross-complaint denying the allegations pertaining to said alleged negligence and reduction of judgment.

The cause was tried by a jury which returned a verdict in favor of Polisso and against Souza in the sum of $32,500 and also returned its special verdict that plaintiff's injury was not proximately contributed to by plaintiff's employer Pratico.

Souza moved for a new trial. His motion for a new trial on plaintiff's complaint was denied but his motion for a new trial on his cross-complaint against Pratico and California Compensation was granted on the grounds of insufficiency of the evidence and on the further ground that the verdict was against the law. The court's order of denial also stated: 'The Court further finds as a matter of law that there was concurring contributory negligence on the part of cross-defendants, proximately causing the injuries sustained by plaintiff.' The court further ordered that the application of California Compensation for a lien be denied and that the judgment in favor of plaintiff be reduced by the amount of the lien of said insurance carrier, namely $9,186.29. (See Witt v. Jackson (1961) 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641.)

Cross-defendants Pratico and California Compensation appeal from the above order 'denying Defendant MANUEL SOUZA'S Motion For New Trial on the Complaint, and granting said Motion as to the Cross-Complaint; and denying to Cross-Defendant CALIFORNIA COMPENSATION & FIRE COMPANY its lien on the judgment, and reducing the judgment in the amount of said lien; and from the judgment against Cross-Defendants as amended by said Order.' ¹

The facts in the main are not in dispute. In April 1963 Souza was the general contractor for a one-story commercial building under construction in San Jose. Pratico was the masonry subcontractor who had the contract for the brick-work on the job and with his brothers Pete and Paul did the actual work themselves. Plaintiff Anthony Polisso was a hod carrier employed by Pratico on the job. His duties were to keep the three brothers supplied with materials--mixing the mortar and hauling brick, mortar and anything else used to the masons inside the building.

On April 17, 1963, plaintiff arrived at the job at about 7:45 a.m. A cement mixer, used to mix the mortar, was brought to site shortly thereafter. Plaintiff, who had operated this particular mixer over a period of about seven months, set up the machine himself in a position where it would facilitate his supplying the bricklayers inside the building.

At about 11:15 a.m. plaintiff, while operating the mixer, severely injured his left hand and arm in an unusual accident which as reconstructed from his testimony happened as follows: Plaintiff had mixed one or two batches of cement and was in the process of maxing the next batch when he noticed that a piece of the cement paper bag had fallen into the mortar. He therefore pushed back the clutch of the mixer to stop the blades so that he could reach in and remove the piece of paper. He then reached down into the mixer with his left hand but being short had to stand on tiptoe and thereafter lifted his right foot off the ground. He retrieved the piece of the bag but as he resumed his normal position his right foot landed on the end of a '2 4' lying at an angle against and across the axle of the mixer. His foot hit the high end of the piece of wood lying in this see-saw position, causing the lower end resting on the ground to flip up and come in contact with the clutch, thus knocking the clutch back to an 'on' position and starting the operation of the blades before he could remove his arm from the mixer. As a result plaintiff suffered severe injuries.

Plaintiff testified that it was his duty to take care of the operation of the mixer. He stated that when he moved the mixer to its location on the job and set it up there he saw no 2 4 on the axle. Nor did he see any board on it during the time he was working around the machine. In short he neither saw the board nor knew it was there until his foot hit it as described above. He did not at any time see anyone else working around the mixer; did not see defendant Souza in the vicinity of it; and did not see anyone carrying lumber near the piece of equipment, although there was a workman on a ladder near the door of the building which was 14 to 15 feet away.

Defendant, called by plaintiff as a witness under Code of Civil Procedure section 2055, testified that in his contracting business he followed the customary practice of subcontracting various parts of the work; that he subcontracted the bricklaying to Pratico Brothers and the rough work to Reno Brothers; that having been a carpenter for many years he helped the latter. In addition his son, then 18 years old and attending school, helped Souza with the clean-up work. Since the carpentry produced a number of unused and discarded pieces of lumber, Souza regarded it as his job to keep the premises clean, apparently because the subcontractors would not take it upon themselves to do so. The clean-up operation was conducted by Souza and his son about once or twice a week. He stated that just before the bricklayers arrived on the job he had the premises cleaned and all the lumber piled on the opposite side of the building about 100 feet from the scene of the accident. These pieces consisted of 2 4's, 2 8's and 2 10's. He further said that on the day of the accident he was not near the mixer and that as far as he knew there were no 2 4's around the machine.

Sam Reno testified that when he was finished with the framing he helped Souza stack some of the good lumber only but Souza was to do all of the clean-up. Paul Practico testified that he did not use 2 4's in his bricklaying work and that he did not see any piece of lumber around the mixer on the day of the accident. John Pratico testified that he did not see any piece of lumber near the mixer and could not recall whether there was any lumber scattered in the area. Pete Pratico testified that he did not see any lumber. ² However, John further testified that there was a workman, other than defendant, working on the roof of the building, that the man was using a Skil-saw to cut a hole in the roof and that at one point some pieces of either a 2 4 or 2 6 fell inside the building around where he was working. Plaintiff also witnessed this occurrence. Polisso and the three Pratico brothers were the only men from the masonry crew on the job; the three Praticos were working inside the building. There is no evidence in the record that any of them used the troublesome 2 4 in connection with the mixer or for any other purpose or that they put it in the position mentioned above.

The law in California is clear that an employee of a subcontractor is an invitee of the general contractor. (Florez v. Groom Development Co. (1959) 53 Cal.2d 347, 354, 1 Cal.Rptr. 840, 348 P.2d 200; Pauly v. King (1955) 44 Cal.2d 649, 653, 284 P.2d 487; see generally 35 Cal.Jur.2d, pp. 663--665.) As the result of such invitor-invitee relationship, the general contractor exercising supervision over a construction job owes the employees of a subcontractor a common-law duty to exercise ordinary care to provide them with a reasonably safe place to work or to warn them of dangers which are not obvious. (Dingman v. A. F. Mattock Company (1940) 15 Cal.2d 622, 624, 104 P.2d 26; Florez v. Groom Development Co., supra, 53 Cal.2d at pp. 354--357, 1 Cal.Rptr. 840, 348 P.2d 200; Revels v. Southern Cal. Edison Co. (1952) 113 Cal.App.2d 673, 678, 248 P.2d 986; Raich v. Aldon Construction Co. (1954) 129 Cal.App.2d 278, 284--285, 276 P.2d 822.) However, the general contractor is not an insurer of the safety of such employee-invitee and is not liable to him for an injury resulting from a danger which was obvious or should have been observed in the exercise of ordinary care. (Florez v. Groom Development Co., supra, 53 Cal.2d at p. 355, 1 Cal.Rptr. 840, 348 P.2d 200.)

Where, however, the general contractor not merely exercises general supervision over the job in order to bring about its satisfactory completion but also controls the premises or the instrumentality causing the injury he is an employer within the meaning of the Labor Code ³ (§§ 6304, 6305) ⁴...