Woodall v. Wayne Steffner Productions, Inc.

On the occasion in question, according to plaintiff, Welo started too slowly, was given a signal to go faster and was supposed to accelerate at once; the kite jumped along and did not take off; then Welo gave a quick surge forward and the kite rocketed up. Plaintiff started giving the wave-off signal (for an emergency stop); the kite reversed itself, but plaintiff still felt a forward motion, the kite began to fall and he could no longer control it. They were jerked along the ground and plaintiff could feel the rope taut and could feel the forward motion. His estimate was that the car got up to 45 miles.

Welo testified: “Q. Do you recall anything that Mr. Wood-all told you with respect to the importance of slowing down after a certain point when he took to the air? A. Yes, I know all that. Q. You know all that? A. Yes. Q. You accelerated, though, is that correct ? A. No, I did not. Q. Well, did you slow down when he got into the air? A. Did I slow down? Q. Did you slow the speed of the car down when he got in the air? A. I stopped immediately. Q. How far into the air did he get then? A. I would say 70, 75, maybe 80 feet. I am not sure. Q. While he was getting 70, 75 or 80 feet in the air, during that period from the time he left the ground until he got 75 feet in the air, did you slow down any before you made an immediate stop? A. Look, fellow. There wasn’t time, it happened so fast.” “I said we had a prearranged signal but it happened so fast that I never got the signal. Q. Then you didn’t see any signal; is that right? A. That is right.” “Q. You were the driver on that day, weren’t you? A. I was the

The kite turned over on plaintiff and he was seriously injured. He began to yell, “Too fast, too fast, I told him too fast. ’ ’ A boy who was about five feet from plaintiff when on the ground heard him, less than a minute after the accident, repeating, “I told him not to go too fast.” Welo said the car got up to 33-34 miles. Kenneth Carlson, who was in the tow car with Welo assigned to the job of watching the speedometer, testified that when plaintiff was lying on the ground he heard him say, “Too fast” and “My leg, my leg.”

An expert witness, William D. Bridgeman, who viewed the film of this unfortunate flight and made computations based thereon, testified that “speed was the cause of the accident”; also, “Speed caused it to come down, that is right.” Another expert, Sergeant Donald M. MacLean, of the Los Angeles Police Department, upon the basis of like calculations expressed the opinion that the speed of the tow car got up to 46.5 miles an hour.

In the foregoing statement and upon other factual issues we have accepted as proved all evidence and inferences favorable to respondent which find substantial support in the evidence, for this we are required to do. (Crawford v. Southern Pacific Co., 3 Cal.2d 427 , 429 [ 45 P.2d 183 ]; Nichols v. Mitchell, 32 Cal.2d 598 , 600 [ 197 P.2d 550 ]; New v. New, 148 Cal.App.2d 372 , 383 [ 306 P.2d 987 ].)

Appellants do not challenge the amount of the verdict as reduced. Their first point is that there was no substantial evidence that appellants were negligent or that negligence of appellants, if any, was a proximate cause of plaintiff’s injuries. The foregoing statement of facts seems to answer this contention sufficiently. Actually the burden of the argument is that this was an inherently hazardous stunt and one who engaged in it was negligent as a matter of law or assumed any risks involved in it.

Reliance is placed on Montijo v. Samuel Goldwyn, Inc., 113 Cal.App. 57 [ 297 P. 949 ], which does lend considerable apparent support to appellants’ position. The cardinal facts are stated at page 58: “In the fall of 1925 respondent was filming a picture known as ‘Partners Again, ’ one of a ‘Potash and Perlmutter’ series. The plot of the story included an act which involved an airplane and an automobile rushing toward

This case has no tendency to support the claim that appellants herein were not negligent. At best it argues for assumption of risk, and the argument of appellants really merges into the claim of assumption of risk, later considered and rejected herein.

Appellants argue that Welo was an independent contractor and his negligence not imputable to appellants. In support of this they rely primarily upon the following passage from the Welo testimony: “Q. Were you an employee or were you an independent contractor, let’s put it that way? A. I was an independent contractor.” A rank conclusion with respect to a mixed question of law and fact. But there was no objection, no motion to strike, and the evidence is in the record and must be considered for what it is worth. (Cf. Estate of Moore, 143 Cal.App.2d 64 , 74 [ 300 P.2d 110 ]; Berry v. Chrome Crankshaft Co., 159 Cal.App.2d 549 , 552 [ 324 P.2d 70 ].) There is a presumption that one engaged in doing another’s work is his employee. (Robinson v. George, 16 Cal.2d 238 , 242 [ 105 P.2d 914 ]; Pierson v. Holly Sugar Corp., 107 Cal.App.2d 298 , 301 [ 237 P.2d 28 ]; Dibble v. San Joaquin L. & P. Corp., 47 Cal.App. 112 , 115 [ 190 P. 198 ]; Alford v. Bello, 130 Cal.App.2d 291 , 295 [ 278 P.2d 962 ].) Moreover, there is substantial evidence that points to the

Appellants’ counsel make a secondary argument that Welo had been loaned to plaintiff Woodall (stated in the pretrial order to be an independent contractor), had become his special employee pro hac vice and hence his negligence was imputable to plaintiff and not to defendant. Counsel invoke the general rule thus stated in Burns v. Jackson, 53 Cal.App. 345 , 350 [ 200 P. 80 ] : “ ‘It is accordingly well settled that one who is the general servant of another may be loaned or hired by the master for some special service so as to become as to that service the servant of such third party; and where a general servant is so loaned or hired to another, and as regards the particular service for which he is so loaned or hired is subject wholly to the direction and control of that other, the latter, and not the general employer, is the master so far as the particular service is concerned and liable for injuries caused by the negligence and wrongful act of the servant while engaged in the duties pertaining to such service.’ ” But that well settled rule is not applicable to the facts here presented.

The project was that of defendant. It was in the business of filming “acts of skill and daring” as a part of its television show known as “You Asked For It.” For this occasion it had in operation a tow ear to haul the kite, a camera ear to parallel the flight and take pictures as it progressed, a helicopter to view and photograph it from above, and a crew of some six men, viz., Welo to drive the tow ear, Carlson with him to watch the speedometer so Welo could keep his eyes on plaintiff and his signals; Hochman driving the camera car and Crabe taking pictures; Jack Smith and Don Henderson in the helicopter. Henderson was director and, as he phrased it, “responsible for the production crew, the cameraman and so on. . . . ‘You Asked For It,’ when we are photographing an act such as we have done hundreds of times, the director is responsible for getting the act as it is presented onto film. . . . My job as director was to find out what was going to be done as the act was presented and plan the camera placement, who would work on it, and so on. This was the job of the director and in this case I was in charge of our crew.”

Plaintiff had been hired to fly the kite and ride in it. Before a flat price of $500 was reached the negotiations had

There was in no sense a lending of Welo to plaintiff. True, he was to accept instructions from plaintiff and operate according to signals given by him, but that was nothing more nor less than cooperation between two experts in the safe conduct of the exhibition. Welo was in fact the general employee of defendant, a small organization in which every

The flight could not be made successfully except at certain regulated speeds of the tow car and upon signals given from the air to the ground. Plaintiff had the right to reject Welo as driver before the flight began but there was no possibility of his discharging him after the start was made.

While there was in fact no lending of defendant’s servant Welo to plaintiff, the reasoning of the authorities dealing with a lending in somewhat similar circumstances is helpful.

Where the servants of two employers are jointly engaged in a work of mutual interest, each employee remains the servant of his own master and does not become the servant of the other. Moss v. Chronicle Pub. Co., 201 Cal. 610 , 613 [ 258 P. 88 , 55 A.L.R. 1258 ] : “Certain it is that appellant [Chronicle Publishing Company] was so vitally interested in the dispatch of the work that the jury could have found that appellant’s servant and Mowry’s servant were at the time of the accident jointly engaged in a work of mutual interest to the parties, and this is true even if it be conceded that Miotti, after being ordered to this service, thereafter took his orders as to the details thereof from the servant of Mowry. It is a well-reeognized principle that where the servants of two parties are jointly engaged in a work of mutual interest each employee is the servant of his own master and neither of the employees is the servant of the other’s master.” If plaintiff were the employee of some Cleveland firm that had sent him to California to conduct this exhibition these authorities would be precisely applicable. We do not see that the fact that plaintiff is acting as a principal affects Welo’s status under such circumstances.

Moreover, “it is necessary to distinguish between authoritative direction and control and mere suggestions as to details or the necessary co-operation where the work furnished is part of a larger operation.” (57 C.J.S. § 566, p. 287.) On this

“A familiar illustration of the lack of full control is found in the case of Chamberlain v. Lee, 148 Tenn. 637 [ 257 S.W. 415 , 417]. There the servant of an independent contractor went to the building of another master to repair the elevator. There the operator of the elevator, the servant of the owners of the building, was told to operate the cage in such way and manner as he might be directed by the servant of the independent contractor. In manipulating the elevator, the latter servant was injured. The owners of the building were held liable upon the ground that, although their servant was directed to place himself for certain purposes under the control of the independent contractor, nevertheless their control over said servant was not completely resigned, and the cause of action by the employee of the independent contractor against them was sustained, the court saying:

“ ‘This does not make out a case of lending a servant. The servant was put under the control of plaintiff for one purpose alone. That is, to move the car up and down as plaintiff desired while the particular job was being done. The elevator ear was put under the control of the plaintiff for the time, but it was put under his control along with its attendant, who remained in the service of the defendants. There is nothing to show that plaintiff could have discharged this boy, and put another boy to running the elevator at this time. Plaintiff certainly had no right to use this elevator boy for any purpose in connection with the work other than running the elevator up and down. The plaintiff could not have required the elevator boy to remain on duty for a longer period than his regular hours under his contract with defendants.

“ ‘In order to escape responsibility for the negligence of his servant on the theory that the .servant has been loaned, the original master must resign full control of the servant for the time being. ’ ” To the same effect are, Peters v. United Studios, Inc., 98 Cal.App. 373 , 379 [ 277 P. 156 ]; Valdick v. LeClair, 106 Cal.App. 489 , 496 [ 289 P. 673 ]; Carlson v. Sun-

Maid Raisin Growers Assn., 121 Cal.App. 719 , 728-729 [ 9 P.2d 546 ]; Welborn v. Dalzell Rigging Co., 181 Cal.App.2d 268 , 275 [ 5 Cal.Rptr. 195 ]; Doty v. Lacey, 114 Cal.App.2d 73 , 78 [ 249 P.2d 550 ]; Standard Oil Co. v. Anderson, 212 U.S. 215 , 226 [ 29 S.Ct. 252 , 53 L.Ed. 480 , 485]. As indicated by Henderson ’s testimony quoted above there was not complete relinquishment by defendant of control over Welo.

Giving of directions as to the details of the work and manner of doing it or giving of signals by plaintiff to Welo does not convert the latter into an employee of the former. (Doty v. Lacey, supra, 114 Cal.App.2d 73 , 79; Moss v. Chronicle Pub. Co. supra, 201 Cal. 610 , 615; Entremont v. Whitsell, 13 Cal.2d 290 , 296 [ 89 P.2d 392 ]; 57 C.J.S. § 566, p. 288.) The fact that the servant furnished by the general employer was an expert (or furnished as such) is also significant. (Halliburton Oil Well Cementing Co. v. Paulk (5 Cir.), 180 F.2d 79 , 83; Doty v. Lacey, supra, p. 78; 1 Rest., Agency 2d, § 227, p. 501; McComas v. Al. G. Barnes Shows Co., 215 Cal. 685 , 693, 696 [ 12 P.2d 630 ].) The fact that the plaintiff, if dissatisfied with Welo, could have procured another driver before the flight began cannot control the result. (32 Cal. Jur.2d § 114, p. 548; Radich v. United States (9 Cir.), 160 F.2d 616 , 618; see also, California Emp. Stab. Com. v. Morris, 28 Cal.2d 812 , 819 [ 172 P.2d 497 ].)

Under the facts of this ease the court correctly concluded as matter of law that Welo did not become or act as plaintiff’s servant, employee or agent,—that is to say, such is the correct conclusion except as affected by the conclusionary evidence received without objection to the effect that Welo was an independent contractor. True, that statement created an attenuated conflict in the evidence and the court instructed as a matter of law that said defendant was liable for Welo’s negligence because he was its agent or employee. Though this instruction was technically erroneous, it certainly could not work any prejudice for the conflict in the evidence was hardly substantial.

Respondent advances certain contentions to the effect that appellant is precluded by the terms of the pre-trial order and other matters from arguing this question of agency, but the conclusion just expressed renders discussion of those claims unnecessary. See, however, as to voluntary canvassing of issues not mentioned in the pretrial order, Garrett v. William A. Cochrane Co., 189 Cal.App.2d 566 , 574 [ 11 Cal. Rptr. 345 ].

There is in it no mention of negligence and the writing must be strictly construed, with the result that it does not cover defendant’s own negligence. (See Basin Oil Co. v. Baash-Ross Tool Co., 125 Cal.App.2d 578 , 595 [ 271 P.2d 122 ]; 35 Cal.Jur.2d § 6, p. 490.)

The trial judge inquired whether the document was offered as a retraxit or release of liability, and defense counsel said: “It is offered not only for that purpose but also for the purpose of showing the knowledge of the plaintiff with respect to the act. It is not offered as a release subsequent but it is offered for the effect of this statement as a release prior to the act.” Actually, the document is not a retraxit or a release but an agreement for exemption from liability. However, we see no difference in the basic rules governing the interpretation of any and all of such documents with respect to liability for one’s own negligence." We think the same true of indemnity agreements.

Appellants rely upon Harvey Machine Co. v. Hatzel & Buehler, Inc., 54 Cal.2d 445 [ 353 P.2d 924 ], while respondent pins his faith to Vinnell Co. v. Pacific Elec. Ry. Co., 52 Cal.2d 411 [ 340 P.2d 604 ], In Yinnell it is said, at page 414: “It would appear that ‘to be sufficient as an exculpatory provision against one’s own negligence, the party seeking to rely thereon must select words or terms clearly and explicitly expressing that this was the intent of the parties.’ (Sproul v. Cuddy, 131 Cal.App.2d 85 , 95 [ 280 P.2d 158 ].) The language of the present clause, prepared on behalf of the defendant railroad, falls short of so expressing the defendant’s

The Harvey Machine Co. ease, supra, held an indemnification clause of a contract to be sufficient protection against the indemnitee’s own negligence, though that word was not used in it. The court said, at page 447: ‘ ‘ The question is one of interpretation of contracts. If it can be determined that the parties intended by their agreement to protect the indemnitee against claims of damage caused by any or even all types of negligent conduct on its part, such an agreement would effectively accomplish that purpose.” It then distinguished the Vinnell case, supra, as follows: “In the Vinnell case it was held that the agreement therein could not be construed to provide that the parties intended to protect the indemnitee against its affirmative acts of negligence, where such protection was not expressly provided. . . . Significant factual differences exist in the present case. Here the indemnitee did not continue to maintain independent operations on the premises whereon construction was in progress. The injuries did not result from some conduct or omission unrelated to the indemnitors’ performance. Most significantly of all, the claimed breach of duty on the indemnitee’s part was not active, affirmative misconduct, but at most passive negligence—a failure to act in fulfillment of a duty of care which devolved upon

Barkett v. Brucato, 122 Cal.App.2d 264 [ 264 P.2d 978 ], cited in Yinnell, supra, develops the point clearly. Speaking through Mr. Presiding Justice Peters, the court said at page 278: ‘ ‘ There is a marked tendency in the more recent cases involving the landlord and tenant relationship to hold that by such clauses the parties could not have intended to provide that the landlord should not be liable for acts amounting to active and affirmative negligence, and to limit such clauses to injuries caused by defects resulting from wear or tear, inherent defects, the elements, and not actively aggravated by the landlord, or to injuries caused by other tenants. In other words, these cases hold, based on the presumed intent of the parties, that such general clauses were never intended to immunize the landlord from responsibility for his acts of affirmative negligence. . . . California has definitely aligned itself with this school of thought. The leading case is Butt v. Bertola, 110 Cal.App.2d 128 [ 242 P.2d 32 ], In that case it was specifically held that the rule of the Werner v. Knoll [ 89 Cal.App.2d 474 ( 201 P.2d 45 )] and Inglis v. Garland [ 19 Cal.App.2d Supp. 767 ( 64 P.2d 501 )] cases, supra, did not apply to acts amounting to affirmative negligence. The rationale of the opinion is that a general waiver clause, independently of [Civil Code] section 1668, will not be interpreted, in the absence of clear, positive and specific language, to include acts amounting to affirmative negligence.”

As the claim at bar is exemption from liability for defendants’ own affirmative negligence, the Yinnell, Barkett and Basin Oil Company eases, supra, are controlling.

Upon another basis this must be so. Plaintiff had been promised an expert driver who would understand and follow instructions and signals; the driver Welo, selected and desig

The trial judge admitted the instrument into evidence “for the limited purpose of showing, if the jury finds it does, the element of knowledge. It is not admitted for the purpose of any release of legal liability of the defendant, if there is any, for that limited purpose.” He instructed the jury accordingly. There was no error in this ruling or in the instruction based on it.

Appellants assert that plaintiff was negligent as a matter of law in attempting such an inherently hazardous stunt and complain of refusal of certain requested instructions along that line. We think that, at best, it was a question of fact. The court submitted it to the jury as such. 35 California Jurisprudence 2d section 225, page 757: “Taking a risk does not amount to contributory negligence unless it is not necessary in order to meet the ordinary requirements of business or pleasure. It constitutes contributory negligence only if it would not have been taken by an ordinarily prudent person in the given situation. A previous assurance of safety, given to the person charged with contributory negligence may have a bearing on the determination whether he acted reasonably in not paying attention to the possibility of the danger involved. ’ ’

Plaintiff, engaged in the business of television servicing and hi-fi installation, had served as airplane mechanic in the Army Air Force and had studied the basic principles of flight at Sheppard Field, Texas, one of the finest schools in the country. Kite-flying with water skis is a common sport throughout the eastern part of the country, especially in Florida. Plaintiff became interested in the sport when he saw an exhibition of same in Cleveland. This led to the construction of his own kite and the flying of same over water some 225 to 250 times, including a flight across Lake Brie, some 32 miles. At none of these times did he suffer any injury, though he had one or two spills when flying over water. One he related as follows: “Once I had a cruiser went across our wake. We were in a small boat and the bow ran in the wake and it had no choice

The issue -of assumption of risk, upon which appellants heavily rely, was left to the jury as one of fact by the instructions, which were as favorable to defendants as they reasonably could expect.

It is doubtless .true that plaintiff assumed any risk growing out of inexpert manipulation of the kite, a sudden windstorm, breaking loose of the tow rope which he had fastened, the kite splitting in the air, or any one of many eventualities that were not properly attributable to the two defendants’ own activities. Respondent’s brief says, at page 63: “Respondent may have assumed the. risk of his kite’s breaking, his landing’s

Concerning defendant’s part in the flight, it is to be remembered that plaintiff had been assured repeatedly as to the competency and care of the driver to be furnished by defendant. That was the one feature of the venture that he could not control. He obviously surrendered his judgment as to selection of a driver to defendant and did so upon the faith of such assurances given him. Prosser on Law of Torts, 2d edition, page 311, says: “Assumption of risk must be free and voluntary. If it clearly appears from the plaintiff’s words or conduct that he does not consent to relieve the defendant of the obligation to protect him, the risk will not be assumed.... If, however, he surrenders his better judgment upon an assurance of safety or a promise of protection, he does not assume the risk, unless the danger is so obvious and so extreme that there can be no reasonable reliance upon the assurance.” 65 Corpus Juris Secundum section 174, page 851: “Thus, if plaintiff surrendered his better judgment on an assurance of safety or a promise of protection he did not assume the risk unless the danger was so obvious and so extreme that there could be no reasonable reliance on the assurance.” See also Fred Harvey Corp. v. Mateas (9 Cir.), 170 F.2d 612 , 615-616; Whyte v. Idora Park Co., 29 Cal.App. 342 , 343, 346 [ 155 P. 1018 ]; Weis v. Davis, 28 Cal.App.2d 240 , 244 [ 82 P.2d 487 ].

65 Corpus Juris Secundum section 174, page 852, further says: “ [0]ne is hot required to anticipate that he will be exposed to a hazard not naturally incidental to his situation, but arising from negligence which he has no reason to foresee.” Rogers v. Los Angeles Transit Lines, 45 Cal.2d 414 , 419 [ 289 P.2d 226 ] : “While a person, if fully informed, may assume the risk even though the dangerous condition is caused by the negligence of others (Prescott v. Ralphs Grocery Co., supra, 42 Cal.2d 158 , 162 [ 265 P.2d 904 ]) ‘The plaintiff does not assume the risk of any negligence which he has no reason to anticipate, but once he is fully- informed of it, it is well settled that the risks arising from such negligence may be

The parties had a fair trial and the judgment is affirmed; the attempted appeal from the verdict of the jury is dismissed; the order denying motion of defendants Wayne Steffner Productions, Inc., and Jerome Welo for judgment notwithstanding the verdict is affirmed.

Fox, P. J., and Herndon, J., concurred.

The petition of defendants and appellants for a hearing by the Supreme Court was denied May 23, 1962.