Umsted v. Scofield Engineering Construction Co.

The question involved upon this appeal is whether defendant, Scofield Engineering Construction Company, a corporation, was the special employer of Howard Wilson Umsted, for whose death, alleged to have been caused by the negligence of the employees of said Construction Company, his father, Howard Claire Umsted, plaintiff herein, seeks to recover damages. If the Construction Company was, as it asserts, the special employer of decedent, plaintiff was without right to maintain an action for damages against it for the death of his son, but was limited to

The court below, being of the opinion upon the conclusion of the trial that the evidence as a matter of law established the relation of special employer and employee between the Construction Company and the decedent, made a special finding to the effect that decedent was the special employee of the defendant and that the injuries resulting in his death grew out of and were received in the course of the employment of the said decedent, upon which finding was entered the judgment that plaintiff take nothing by the action. Although the court below did not follow the procedure generally adhered to in such cases and direct the jury to bring in a verdict for the defendant, which woidd serve as the basis for its judgment, a judgment entered by the court upon the basis of a special finding where the court is of the opinion that the state of the evidence is such that there is only one judgment which can lawfully be rendered, is to be given the same effect as a judgment entered by the court upon a directed verdict. Without regard to the procedure followed, the determination is, in law, the act of the court. The jury merely acts in a ministerial capacity in bringing in a verdict in pursuance of the court’s direction. (Estate of Sharon, 179 Cal. 447 [ 177 Pac. 283 ]; Gaskill v. Pacific Electric Ry. Co., 30 Cal. App. 593 [ 159 Pac. 200 ]; 24 Cal. Jur. 917.)

The respondent had contracted to excavate and construct a basement for an addition to the New Broadway Department Store in the city of Los Angeles, and at the time decedent received the injuries from which he subsequently died it was engaged in excavating for the basement of said addition to a depth of over sixty feet below the level of the street. By reason of the fact that operations were being carried on during the night, as well as by day, and that much of the work was being done below the surface of the ground, it was necessary that temporary lighting facilities be installed from time to time at such places as they were needed. In addition, large quantities of electrically operated machinery were being used and the services of electricians were required for such work. Decedent, who was eighteen years of age at the time of his death, was an electrician’s helper on the regular pay-roll of the Golden State

Respondent, in denying appellant’s right to maintain an action for damages, relies upon those eases holding that where either by the terms of the contract or during the course of its performance the employee of the alleged independent contractor comes under the control and direction of the other party to whom he has been lent or hired and suffers injury in the course of and in consequence of such direction and control, the relation of both general and special employer exists and the injured employee is entitled to compensation from both the general and special employer in accordance with the provisions of the Workmen’s Compensation, Insurance and Safety Act, which affords the exclusive remedy in such eases. (Famous Players Lasky Corp. v. Industrial Acc. Com., 194 Cal. 134 [ 34 A. L. R. 765 , 228 Pac. 5 ]; Employers’ Liability Assur. Corp. v. Industrial Acc. Com., 179 Cal. 432 [ 177 Pac. 273 ]; Federal Mutual Liability Ins. Co. v. Industrial Acc. Com., 190 Cal. 97 [ 210 Pac. 628 ].) If the workmen lent or hired are under the control of the special employer in the performance of work which is a part of his business, they are, for the time being, his employees. (Famous Players Lasky Corp. v. Industrial Acc. Com., supra.) As such workmen may under the common law of master and servant look to the general employer for wages and to the special employer for damages for negligent injuries, so under the workmen’s compensation law they, may, so far as its provisions are applicable, look to the one or to the other, or to both, for compensation for injuries due to occupational hazards.

By taking the case from the jury and making the special finding that decedent was the special employee of the Construction Company, upon which finding the judgment for defendant was entered, the court below adopted the

Since decedent, Howard Wilson Umsted, while working upon the job as an electrician’s helper, was directed solely by Sims, the .relationship between Sims and the Construction Company would be determinative of the status of decedent as to said Construction Company. If Sims was an employee of an independent contractor, to wit, of the electrical company, and not the special employee of the Construction Company, decedent was likewise not the special employee of said Construction Company. Both Sims and decedent received payment of their wages from the electric company, being paid at a daily rate based on an eight-hour day. They kept a record of their time on time cards, which were “0. K.’d” each day by the timekeeper for the Construction

When asked upon the trial “how or with what means” he was to do the work, Sims replied that Mr. Sayre, who was superintendent of electrical construction for the electric company, directed him. Although it appears from the testimony of Sims given in response to more specific questions, that the only occasions upon which he received any express directions from Mr. Sayre were when Sayre told him in the office of the electric company to go over to the job and do whatever was needed and on the following day when he telephoned to Mr. Sayre and was told to do “anything they wanted to take care of,” the jury may well have inferred that the absence of more specific and detailed instructions from Sayre was to be accounted for by the fact that Sims was a skilled electrician, who did not require supervision or control as to the details of accomplishing the task to which he was assigned. It is the right to exercise control, rather than the

Sims further stated that when on the job Mr. La Barr, superintendent of construction for the Construction Company, had directed him as to what was to be done, but not “as to how to do anything.’’ The jury might have inferred that the instructions given by La Barr were merely directions as to the result to be accomplished, such as are required in the nature of things to be given to independent contractors in any case. By reason of the character of the work, it would have been impossible for the duly authorized agents of the Construction Company and the electric company to have agreed beforehand as to the precise work to be done. Although the witness Sayre, superintendent of electrical construction for the electric company, stated that the electricians sent to the job were working under the direction of the Construction Company, other portions of his testimony and the evidence as to the circumstances surrounding the employment, as testified to by other witnesses, would support the conclusion that the control of the Construction Company was only as to the result to be accomplished and that it did not possess such control of the mode of accomplishment as to render it the special employer of Sims and decedent. (See Stacey v. Industrial Acc. Com., 197 Cal. 164 [ 239 Pac. 1072 ], and Independence Indemnity Co. v. Industrial Acc. Com., ante, p. 51 [ 262 Pac. 757 ].)

The judgment appealed from is reversed.

Curtis, J., and Preston, J., concurred.

Hearing in Bank denied.

All the Justices present concurred.