Hard v. Hollywood Turf Club

The Hollywood Turf Club by a writing engaged appellant to remodel and renovate its grandstand by removing two floors of a section and by reconstructing three floors. For the purpose of executing its contract, appellant let 21 subcontracts with the approval of the club and employed 125 men for the general work. The Arenz-Warren Company had the subcontract to do the painting and it-employed a superintendent and two foremen besides workmen. Respondent was one of the painters. On December 15, 1947, he was at work on a defective scaffold when it collapsed and precipitated him 40 feet causing severe injuries. As his employer, Arenz-Warren submitted to the jurisdiction of the

Respondent claims that he had two employers at the grandstand, namely, Arenz-Warren who engaged him to work and the L. E. Dixon Company which did not employ him to work. As to the former there is no dispute. They have answered for the industrial accident in the proper form. They constructed their scaffold and their employee was injured by using it. But respondent contends that he is entitled to a second judgment against appellant on the theory that the latter was also his employer; that its superintendent, Mr. Ayers, was “responsible for the job as a whole,” scheduled and coordinated the work of the subcontractors, had to “push” the painters and other subcontractors to speed up their work, knew for two weeks of the high painting being done on the scaffolding. He saw that the painters were not equipped with such safety belts as he would have required his own men to wear. However, there is no evidence that appellant directly controlled the movements of respondent or of any employee of a subcontractor. Neither did appellant direct the details of the painting. It gave only general instructions as to the work to be done. But at the same time, Mr. Ayers knew that Arenz-Warren kept on the grandstand its own superintendent and two foremen, Messrs. Sheldon and Malone who supervised the rigging of scaffolds and directed the course of the painters’ work.

Appellant had nothing to do with the construction of the scaffold. Its .nearest approach thereto was transporting some of the materials to the overhead site by use of its crane. Included among such materials was a steel strip taken from an old section of the grandstand and used as support for one end of the scaffold. It was the buckling of this piece of metal which apparently caused the collapse of the scaffold from which respondent fell. There is no proof of the latter’s assertion that the strip was actually supplied by appellant. In such event, any theory of direct or affirmative negligence on appellant’s part is without evidential support. It supervised the reconstruction operations and accommodated Arenz-Warren by hoisting their materials to the higher levels. It follows that in the absence of proof of appellant’s negligence, the only proposed theory upon which it can be adjudged the debtor of respondent is that

While the trial judge recognized the general rule governing the liability of a general contractor, under instructions given, the jury was encouraged to find facts from which appellant’s liability was the logical sequitur. It was successfully maintained below that (1) appellant was under statutory duty to provide a safe place for respondent to work and, (2) pursuant to the contract with the turf club, appellant had undertaken to provide for the safety of all workmen engaged in the reconstruction operations.

Safe Place to Work

Respondent was entitled to a safe place to work and to such devices as would reasonably have guarded him against injury. The state and the world of industry had reached that conclusion when in 1911 the Legislature was directed by section 21 of article XX of the Constitution to create the first “Workmen’s Compensation Insurance and Safety Act.” While the lawmakers are at liberty to enact bold and revolutionary measures in the exercise of the police power, the statesmen of that period sought to forestall contentions based upon archaic doctrines and contradictory statutes and to extend the judicial power to the Industrial Accident Commission authorized by section 21. The preservation of manpower, its security against loss or impairment and poverty were undertaken amid dire misgivings. How well it has succeeded is recorded nowhere with deeper-cut letters than in the archives of this state. All industries and commercial houses at first and, finally, all places where men and women toil, must guarantee the laborer against injury by any kind of accident, whatever its origin, so long as he is occupied in the course of employment at the time of injury. Measures for insuring the collectibility of such awards as might be made were also incorporated in statutes and the system works well.

Division 5 of the Labor Code has five parts. The definition of employer falls in the fifth section in part 1 and is preceded by section 6301 which reads: “As used in this part the terms described in the following sections shall have the meaning therein given them.” If the Legislature had intended that the word “employer” shall have the meaning given in section" 6304 in all other “Parts” of division 5, surely they would have said so. They could have said “Division” as easily as “Part.” Such restriction upon the use of the terms employed in “Part 1” must have been intended. It cannot in all fairness be attributed to the indolence or indifference of the lawmakers. The foregoing observation is emphasized by the language of section 6300 which reads: “As used in this division:” commission, commissioner and insurer severally mean, etc. Thus, in two adjoining sections, the Legislature exercised the opportunity to demonstrate that in the 53 sections of Part 1 “employer” shall include “every person having control of a place of employment” whereas the terms defined in section 6300 shall have the same meaning throughout the entirety of division 5. Had it been the purpose of the Legislature to have “employer” mean the same thing throughout the “Division” it could have done so by substituting that word for “Part” in section 6301. Because it failed to make the substitution the conclusion is irresistible that it was a part of the general design that the term employer used in section 7152 has the

Other Intrinsic Proof

The original Workmen’s Compensation Act was enacted in 1911. (Stats. 1911, ch. 399, p. 796.) Section 4 thereof defined “employer” to be a person who has another in service under a contract of hire and who has elected to come under the act. While the provisions of that original statute were changed in some respects, in 1913 (Stats. 1913, ch. 176, p. 279) it retained virtually the same definition of “employer.” But the amended act added section 51, page 305. It included a definition similar to the present section 6304 of the Labor Code. However, the language used emphasizes that the definitions laid down apply to sections 51 to 72 inclusive and to no others. Not one of those 22 sections contains a provision similar to the present scaffolding statutes. It thus appears from the original act and its first amendment that appellant could not have qualified as respondent’s employer under the scaffolding act.

The Workmen’s Compensation Act (herein called the act) remained unchanged insofar as the sections here involved are concerned until 1917. (Stats. 1917, ch. 786, p. 831.) Section 33 of the act as amended that year included the definition of “employer” as set forth in the 1913 edition of section 51, supra. Its meaning was again restricted to a certain portion of the act, to wit, sections 33 to 54 inclusive, which were substantially the same as sections 51 through 72 of the 1913 act. Sections 33 through 54 of the 1917 edition were subsequently codified as part 1, division 5 of the Labor Code, and no statute has ever been adopted to extend the definitions thereby included to apply to the scaffolding statute.

Included in part 3 of division 5 are sections 7151 and 7152 which had their origin in “an Act to regulate scaffolding” adopted in 1913 (Stats. 19Í3, ch. 48, §§ 1 and 2, pp. 49-50) on April 22—two months prior to the adoption of the amended Workmen’s Compensation Act. The provisions of such scaffolding act were substantially the same as sections 7151 and 7152 of the present Labor Code. Neither in 1913 nor now did those sections contain a definition of “employer.” But it is a fact not without significance that at the time of the first adoption of the scaffolding act in 1913, the word “employer” had not been so used as to include either an owner or a general contractor in his relation to a subcontractor. (Carstens v. Pillsbury, 172 Cal. 572 ,

Respondent argues that parts 1 and 3 of division 5 both contain safety provisions, that by reason thereof they are in parimateria and that consequently the same terms in each must be given the same meaning. Such reasoning is not persuasive. The rule of pari materia is a rule of statutory construction that is invoked as an aid in determining the meaning of a statute whose purpose is not clear. But it has no application where the legislative intent is made unambiguous by the language employed by the lawmakers. (59 C.J. p. 1050, § 620.)

Moreover, the Legislature must have been moved by considerations of sound public policy in not expressly extending the meaning of “employer” as used in section 6304 to sections 7151 and 7152. The lawmakers must have reflected that to impose the duty upon the general contractor directly to oversee all labor being performed and to inspect every device imported for use by the workmen on a particular construction and to impose nondelegable duties upon him to enforce all statutory safety provisions would be to place an extremely onerous burden upon him who has the general control over the ultimate result of the labor done yet without control or management of the means utilized to achieve the purpose planned. To adjudge appellant liable for errors of judgment on the part of 21 separate subcontractors and to hold him responsible for the enforcement of the safety statutes would be tantamount to making it an insurer of every subcontractor’s activities. For appellant efficiently and effectively to direct the operations of 21 subcontractors essential to the successful consummation of so stupendous a task as the contract with the turf club demanded would have required such an outlay in time, labor and expense as to frustrate computation. At the same time it is doubtful

From the foregoing the conclusion is unavoidable that the trial court committed prejudicial error by instructing the jury that appellant was under a statutory nondelegable duty to provide the safeguards required by sections 7151 and 7152 of the Labor Code.

In support of his contention that he is entitled to recover against the general contractor as the party in charge of the grandstand while undergoing repairs, respondent has cited a number of authorities from foreign jurisdictions. The judgment in each instance was predicated upon a statute that was properly construed. In Claffy v. Chicago Dock & Canal Co., 249 Ill. 210 [ 94 N.E. 551 ], the statute required the owner or contractor to “cause the shafts or openings in each floor to be enclosed or fenced in on all sides by substantial barrier or railing at least eight feet in height’’ and

In Moran v. Zenith Oil Co., 92 Cal.App.2d 236 [ 206 P.2d 679 ], the owner of the premises owned the appliances with which the plaintiff and his fellow workmen performed the task of cleaning the Zenith wells. The cable used had, during the five years’ use, deteriorated, of which fact neither the plaintiff nor his foreman had knowledge but which fact was known to Zenith. In short, the owner invited the workmen to render a service and supplied them with death-dealing implements.

In DeLee v. T. J. Pardy Const. Co., 249 N.Y. 103 [ 162 N.E. 599 ], the defendant falsely represented the scaffold to be strong enough to hold six men and it was not. Not only did that defendant supply the scaffold but also it directed the employees of the subcontractor. On both grounds it was liable.

A general contractor may be liable for injuries resulting from defective appliances only when he has the privilege of selecting them or the materials out of which they

It follows that neither by the language of the Labor Code nor by appellate decisions is there authority for adjudging a general contractor liable for injuries suffered by a workman on a construction job as the result of a defective scaffold which had been made and supplied by the subcontractor—employer of the injured man.

The trial judge reached a contrary conclusion based largely upon the general language of court decisions and upon what he conceived to be the “tendency” of the law to guarantee workmen against loss. Such tendency does not signify that a workman for a subcontractor shall receive more than his actual loss, assuming the commission has made a fair award. Neither does it mean that the subcontractor shall be wholly relieved from loss by exacting from the general contractor reimbursement for the award made by the Accident Com•mission against the employer of the injured workman. The tendency of statutory law is as suggested by the trial judge, but by no known doctrine may a court go beyond statutory law in fixing liability. It may construe a statute liberally but not rewrite it.

Judgment reversed.

McComb, J., and Pox, J., concurred.

A petition for a rehearing was denied August 7, 1952, and respondent’s petition for a hearing by the Supreme Court was denied September 11,1952. Carter, J., was of the opinion that the petition should be granted.