Fidelity & Casualty Co. v. Llewellyn Iron Works

This is an action brought to recover damages for the death of one James

The facts, so far as material for our present purpose, are as follows: On July 24, 1914, James F. Goldsmith, the deceased, a painter, was accidentally killed by falling from a plank on which he was working, outside a window on the seventh floor of the Broadway Department Store building, in the City of Los Angeles, then under construction by Mr. Arthur Letts, as owner. Mr. C. B. Weaver was the general contractor in charge of the work, including the painting, and as such was the employer of said Goldsmith. The defendant had a contract for the installation of the elevators in the building, and was engaged in such work at the time of the accident. The elevator hatchways with which this case is concerned were five in number, located along the southerly wall of the building. These hatchways were all within one inclosure, formed by the wall of the building with a window opposite each hatchway on each floor, on the back, and a glassed-in frame work on the front, with sliding doors. The glass was in process of installation at the time of the accident. In order to perform any work on the south wall of the building it was necessary for the workmen to reach this wall. This they did by erecting ■ a staging within and extending across the hatchways. Up this wall in each hatchway is a pair of upright guide-rails, between which are suspended heavy counter-weights, which slide up or down contrary to the action of the elevator-cage. One crew of men after another had so erected their staging and performed their work. Among these various workmen were plasterers, who plastered the walls of the shaft; carpenters, who put in the window-casings; sheet-metal men, who put in the metal window-sills; glass-workers, who put the glass in the front work; painters, who painted the window-frames, and window painters, who stained the window-sashes, each of whom, including Goldsmith, was engaged in doing a necessary and essential part of the building. Working simultaneously with these various crews were employees of defendant, engaged in the construction and installation of the elevators. At the time of the accident the only elevator which had been installed by defendant was elevator No. 5, the same being on the extreme right hand of a person looking into' the hatchways from the floor

The deceased left a widow and a minor child, who made claim for compensation for his death under the Workmen’s Compensation Act of this state, [Stats. 1917, p. 831], against Arthur Letts and C. B. Weaver, as his employers, and against the Fidelity & Casualty Company of New York, plaintiff herein, their insurer. The Industrial Accident Commission, accordingly, on March 26, 1915, awarded compensation, and the said Fidelity & Casualty Company of New York, pursuant to the terms of its policy, assumed liability for the entire award, making the payments thereunder. Thereafter, joining Letts and Weaver as plaintiffs, this action was brought by the Fidelity & Casualty Company of New York for general damages, as hereinbefore set forth.

There was a demurrer to the complaint, which was overruled. In its answer defendant denied negligence, alleged one recovery—the award as made by the Industrial Accident Commission—precluding any other; that deceased was a trespasser, and, at most, a mere licensee; charged contributory negligence; and further alleged that the accident

Appellant urges as a basis for a reversal of the judgment: (1) Excessive damages given under the influence of passion or prejudice; (2) insufficiency of the evidence to justify the verdict; (3) That the verdict is against law; and (4) errors of law occurring at the trial. It also specifies 138 assignments of error.

Referring to the point made as to excessive damages given under the influence of passion or prejudice, suffice it to say that no evidence upon which such statement is based has been called to our attention, and we have failed to find anything in the record from which such an inference could be drawn, or that would justify such a conclusion.

The trial court, after instructing the jury that contributory negligence, if found, would bar recovery, gave certain instructions designated as “P,” “Q,” and “R.” Appellant contends that the verdict of the jury was in “complete disregard of the foregoing^instructions, and against the law declared thereby,” and urges that “these instructions in effect required a verdict for defendant.” [1] Appellant insists, with commendable vigor, that “an examination of the evidence will show that every fact on which these instructions were predicated was shown without conflict, and if so a finding of contributory negligence and a consequent verdict for defendant were inevitable.” There is no doubt but that the instructions referred to were proper were the facts as shown by the evidence in this case such as contended for by appellant; but after an examination thereof we are unable to agree with its statement of such facts. Beyond the pale of successful contradiction, we think, the record shows a very decided conflict on every fact upon which • the said instructions were predicated. Upon these conditions there was no disregard by the jury of the court’s instructions. There was evidence upon which the said instructions were predicated, and which, if believed by the ■jury, would have sustained a verdict for defendant; but the

The next point urged by appellant is that of contributory negligence on the part of deceased. We are not able to agree with it in that contention. [2] For instance, defendant contends that even if its employees had seen the said plank, they would have no intimation that they might injure anyone by moving the car. But we are compelled to conclude that the very fact of the known presence of the plank across the shaft was notice to defendant for further investigation of that fact, and such an investigation would have disclosed the presence of deceased on the outer end thereof, as before stated. [3] It is also contended by defendant that there was an agreement between the employers that workmen should not use the shaft without notifying the foreman of defendant. But assuming such to have been the case, notice of that arrangement must be shown to have been given to deceased. There is not one word of evidence that this was done. The rule is, as we understand it, that an agreement as to the manner of doing work by an employer is not binding upon the employee unless the existence of such is brought home to him. (Alabama Midland R. Co. v. McDonald, 112 Ala. 216 , [ 20 South. 472 ]; Brown v. Louisville etc. R. Co., 111 Ala. 275 , [ 19 South. 1001 ]; Atchison, T. & S. F. Ry. Co. v. Plunkett, 25 Kan. 188 .) We are not informed of the existence of any rule of law which made it necessary for decedent to anticipate and guard against negligent acts of defendant. (Morgan v. Robinson Co., 157 Cal. 348 , [ 107 Pac. 695 ], and eases there cited; Herold v. Mathews, 39 Cal. App. 489 , [ 179 Pac. 414 ].) Although by looking up the shaft and seeing the plank defendant’s employees could not see the man, still, in contemplation of law, the man being where he was, was within the shaft, and, as already seen, care and further investigation would have disclosed his position at the place stated. [4] At any rate, we are satisfied that the question as to whether or not deceased was guilty of contributory negligence in being on the outer end of the plank, and as to whether or not his being there was such as to endanger

[5] Appellant’s next contention is that decedent was not its employee, but was the employee of an independent contractor, and that being such, he was a trespasser in the shaft at the time of the accident, or at the most a mere licensee, to whom defendant owed no duty, except that of not wantonly injuring him. Confronted with the record before us, we think this contention without merit. When we take into consideration the fact that in the construction of a modem business block—and the Broadway Department Store building of Los Angeles is such a block—that there are required, including many others, such artisans as plasterers, carpenters, glass-men, sheet-metal men, and interior-finish men, all of whom, according to the evidence here, had necessary work to do on the south wall of this building, and were under contract to do such work, we are at a loss to understand by what line of reasoning a conclusion can be arrived at that the employees of defendant (also just as essential in their part of the construction of a such a block) were doing a more necessary work, and a work of such importance that the other contractors and their employees could be treated as trespassers. How anyone reading this record, not to say anything of those who saw the witnesses and heard their testimony, would arrive at any other conclusion than that both before and after the time of the ill-fated accident several workmen were continually engaged in work in the elevator shaft or hatchways, including the one—No. 5—in which was the elevator that caused the accident, that no less than seven men were working in this very hatchway on the day of the accident, and, further, that .this fact was known to defendant during all of said time, we are unable to understand.

Defendant asks what more it could have done than it did for Goldsmith’s protection. From the record before us we are justified, we believe, in suggesting that the answer to that inquiry is, that it does not appear that anything was

Appellant next urges, throughout some thirty-seven pages of its opening brief, the point that the plaintiff corporation has no legal capacity to sue in this case. It is also urged, among other things, that there is no proof that a lawful claim was made “in conformity with law”; that in the proceedings had before the Industrial Accident Commission under the Workmen’s Compensation and Safety Act defendant was not called upon to contest the question as to whether or not the claim was a lawful one, and whether or not a legal liability existed on the employer’s part; that if the award of the commission is made binding and conclusive by the terms of the act, then the provisions are unconstitutional, and, conversely, if the award is not binding, then no foundation was laid for plaintiff’s right to sue, because there was no other evidence offered; that the provisions of said act in question violate specific injunctions of the constitution of this state, and infringe also specific provisions of the fourteenth amendment to the constitution of the United States; that the provisions of said act authorize a double satisfaction for the same tort; that the act contains more than one subject, and that the right of subrogation is not expressed in its title. We think, however, that the mere mention of these contentions will serve to make obvious their lack of merit. The constitutionality of the Workmen’s Compensation and Safety Act has been upheld by the supreme court of this state in the case of Western Indemnity Co. v. Pillsbury, 170 Cal. 686 , [ 151 Pac. 398 ], and practically all of the foregoing objections

Appellant urges next that the court erred in giving certain instructions requested by plaintiffs, and in refusing to give certain other instructions requested by defendant. With this contention we are not able to agree. Having read every instruction given, as well as every requested instruction denied, we are of the opinion: (1) That the instructions given, objection to which is urged by appellant here, were ample, and as favorable to defendant—as disclosed by the record—as they properly could be on the questions presented. This is especially and obviously so, we think, when the instructions objected to are considered with, and in the light of, the other instructions given. (2) As to those denied, some were based upon a view of the case absolutely unsupported by the evidence, and therefore erroneous as a matter of law, while others had already been covered by instructions given at defendant’s request, and also by the general instructions given by the court.

The remaining points urged, we think, need not be considered.

In our opinion the evidence is sufficient to support the verdict, and the verdict and judgment based thereon are, and each is, according to law.

Judgment affirmed.

Finlayson, P. J., and Sloane, J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on October 16, 1919.

All the Justices concurred.