Stilson v. Moulton-Niguel Water Dist.

• Court: California Court of Appeals
• Writing for the Court: GABBERT; KERRIGAN, Acting P.J., and KAUFMAN
• Citation: Stilson v. Moulton-Niguel Water Dist., 21 Cal.App.3d 928, 98 Cal.Rptr. 914 (Cal. App. 1971)
• Decision Date: 08 December 1971
• Docket Number: MOULTON-NIGUEL
• Parties: Leonard STILSON, Plaintiff and Respondent, v.WATER DISTRICT, a subdivision of the State of California, and Boyle Engineering Corporation, a corporation, Defendants and Appellants. Civ. 10465.

Page 914

98 Cal.Rptr. 914

21 Cal.App.3d 928

Leonard STILSON, Plaintiff and Respondent, v. MOULTON-NIGUEL WATER DISTRICT, a subdivision of the State of California, and Boyle Engineering Corporation, a corporation, Defendants and Appellants.

Civ. 10465.

Court of Appeal, Fourth District, Division 2, California.

Dec. 8, 1971.

Hearing Denied Feb. 3, 1972.

[21 Cal.App.3d 932] Rimel, Harvey & Logan, Santa Ana, and Musick, Peeler & Garrett, and Bruce E. Clark, Donald R. Gail, and Lawrence E. Stickney, Los Angeles, for defendants and appellants.

Levy & Van Bourg, and Everett E. Demler, Long Beach, for plaintiff and respondent.

OPINION

GABBERT, Justice.

In this action to recover for personal injuries, defendants appeal from a judgment in favor of plaintiff Stilson.

Plaintiff's employer, the American Bridge Division of the United States Steel Corporation (American Bridge), entered into a contract with appellant Moulton-Niguel Water District (Moulton-Niguel) pursuant to which American Bridge was to construct large water tanks. Appellant Boyle Engineering Co. (Boyle) served as supervising engineer for the project. During the course of construction of one of the tanks, plaintiff fell onto a steel floor from a 30-foot steel column on which he was working. Counsel for the defendants stipulated and the evidence produced during the trial shows that plaintiff's fall and consequent injuries were caused by the negligent manner in which American Bridge erected and supported the column on which plaintiff was working when the accident occurred.

Plaintiff's motion for a directed verdict against Moulton-Niguel and Boyle on the issue of liability was granted, and the jury returned a verdict, limited to the issue of damages of $312,875.23, after deduction of workmen's compensation benefits paid. Defendants' motion for a new trial was granted, limited to the issue of damages, unless plaintiff consented to a remittitur of $75,000; plaintiff so consented, and judgment for the sum of $237,875.23 was entered.

Plaintiff's motion for a directed verdict against Moulton-Niguel and Boyle on the issue of liability was based on several theories. Plaintiff contended that under the terms of the contract between American Bridge and the defendants, an agency relationship was created, as a matter of law, in which American Bridge was the agent of the defendants for the purpose of constructing the water tank in which plaintiff was injured. Accordingly, Moulton-Niguel and Boyle would incur liability for the stipulated negligence of their agent. Plaintiff further argued Moulton-Niguel and Boyle were his statutory employers (Labor Code, § 6304), and violated their duties to provide a safe place of employment. (Labor Code, § 6400 et seq.) Finally, plaintiff contended, even if an agency relation were not shown, Moulton-Niguel and Boyle bore the non-delegable duty to provide a safe place to work. (See Van Arsdale v. Hollinger, 68 Cal.2d 245, 66 Cal.Rptr. 20, 437 P.2d 508; Restatement 2d, Torts, §§ 413, 416.) Although the trial judge apparently based his grant of plaintiff's motion for a directed verdict on the existence of an agency relationship between Moulton-Niguel and Boyle, and American Bridge, neither party requested specific findings, and the court made none. Accordingly, if the directed verdict on the issue of liability may be sustained upon any theory of the law applicable to the case, it must be sustained regardless of the considerations which may have moved the trial court to its conclusions. (Davey v. Southern Pacific Co., 116 Cal. 325, 329, 48 P. 117; Snider v. Snider, 200 Cal.App.2d 741, 756, 19 Cal.Rptr. 709; 3 Witkin, Cal. Procedure, § 76, p. 2234.) 'It is judicial action and not judicial reasoning which is the subject of review.' (El Centro Grain Co. v. Bank of Italy, Etc., 123 Cal.App. 564, 567, 11 P.2d 650, 651.)

Appellants now appeal from the judgment on the single ground the directed verdict of liability against Moulton-Niguel and Boyle was error. As we shall discuss below, we conclude the record does not demonstrate, as a matter of law, an agency relationship existed between Moulton-Niguel and Boyle, and American Bridge which would impose liability upon Moulton-Niguel and Boyle for the negligence of American Bridge. However, we are persuaded Moulton-Niguel was subject to the non-delegable duty to take special precautions to avoid the risk which led to Stilson's injuries. Since Moulton-Niguel failed to take such precautions, the directed verdict against it on the issue of liability was not erroneous. Finally, as we shall discuss, Boyle was subject to a duty to take special precautions to avoid the risk which led to Stilson's injury. Having breached that duty, the directed verdict against it on the issue of liability was not erroneous. The judgment should therefore be affirmed.

Appellants first contend the evidence is insufficient to support a directed verdict on the issue of liability because it does not, as a matter of law, show the existence of an agency or employer-employee relationship between Moulton-Niguel and Boyle, and American Bridge.

The contract between Moulton-Niguel and American Bridge contains the following provisions:

'SECTION 3--CONTROL OF THE WORK

A. Authority of the Engineer--The Engineer shall have general supervision and direction of the work and may be represented on the work by duly authorized Resident Engineer or Assistant Engineer and by inspectors. The Engineer shall decide any and all questions which may arise as to the quality or acceptability of materials furnished and work performed, and as to the manner of performance and rate of progress of the work; all questions as to the interpretation of the plans and specifications; and all questions as to the acceptable fulfillment of the Contract on the part of the Contractor.

F. Supervision by Contractor--The Contractor shall give efficient supervision to the work, using his best skill and attention, and shall provide and keep on the work at all times during its progress a competent superintendent and any necessary assistants, all of whom within reason shall be satisfactory to the Engineer. All directions of the Engineer shall be given in writing and shall be received and obeyed by the superintendent in charge of the particular work, reference to which orders are given, and all such directions given to the superintendent shall be as binding as if given to the Contractor in person.

H. . . . Any work done in the absence of the Engineer will be subject to rejection.

'SECTION 4--CONTROL OF MATERIALS

A. Samples and Tests--At the option of the Engineer, the source of supply of each of the materials shall be approved by the Engineer before delivery is started and before such material is used in the work . . .

'SECTION 5--PROSECUTION AND PROGRESS

C. The Contractor shall employ none but competent foremen, laborers, and mechanics. If any subcontractor, superintendent, foreman, laborer, or other person employed on the work by the Contractor fails or refused (sic.) to carry out the direction of the Engineer, or shall appear to the Engineer to be intemperate, incompetent, troublesome, or otherwise undesirable, he shall be discharged immediately on the requisition of the Engineer; and such person shall not again be employed on the work. . . .'

Appellants contend the contract was an insufficient basis to support a finding of an agency relationship between Moulton-Niguel and Boyle, and American Bridge. Appellants argue the contract granted Moulton-Niguel and Boyle only a general supervisory power over the work performed by American Bridge, and did not make them employers and principals of American Bridge.

A major consideration in determining an agency relationship exists is whether an employer retains a right of control over one whom he employs not only as to the result of work done but also as to the mode of accomplishing the work. (McDonald v. Shell Oil Co., 44 Cal.2d 785, 788, 285 P.2d 902; Green v. Soule, 145 Cal. 96, 99, 78 P. 337.) Conversely, lack of control over the method and details of work tends to show an independent contractual relation rather than one of agency. (Green v. Soule, Supra; Rogers v. Whitson, 228 Cal.App.2d 662, 671, 672, 39 Cal.Rptr. 849.)

Nevertheless, the control which an owner may exert in his general supervisory power over work done at his behest may be a broad general power of supervision without changing a relationship from employer-independent contractor to one of agency. 'The owner may retain a broad general power of supervision and control as to the results of the work so as to insure satisfactory performance of the independent contract--including the right to inspect, (citation) the right to stop the work, (citation) the right to make suggestions or recommendations as to details of the work, (citation) the right to prescribe alterations or deviations in the work, (citation)--without changing the relationship from that of owner and independent contractor or the duties arising from that relationship.' (McDonald v. Shell Oil Co., Supra, 44 Cal.2d 785, 790, 285 P.2d 902, 904.)

The question whether an agency relationship has been created is normally a question of fact. (Thayer v. Pacific Elec. Ry. Co., 55 Cal.2d 430, 438, 11 Cal.Rptr. 560, 360 P.2d 56; Hardin v. Elvitsky, 232 Cal.App.2d 357, 373, 42 Cal.Rptr. 748; Housewright v. Pacific Far East Line, Inc., 229 Cal.App.2d 259, 265, 40 Cal.Rptr. 208.) Where a conflict in the evidence exists from which either conclusion could be reached as to the status of the parties, the question must be submitted to the jury. (Dahl-Beck Electric Co., Inc. v. Rogge, 275 Cal.App.2d 893, 900, 80 Cal.Rptr. 440; Hardin v. Elvitsky, Supra, 232 Cal.App.2d 357, 42 Cal.Rptr. 748.) However, '. . . where but one inference can reasonably be drawn from the evidence . . . the question of whether one is an employee or an independent contractor becomes one of law for the court. (Citation.)' (Burlingham v. Gray...