Gettemy v. Star House Movers, Inc.

The surviving wife and two minor children of James Gettemy, deceased, obtained a verdict and judgment against defendant Star House Movers, Inc., for $50,000 as damages for wrongful death of Mr. Gettemy, who was struck by a falling palm tree. Said defendant appeals from the judgment. Verdict and judgment were in favor of the other defendant, Rahenkamp.

The first cause of action of the second amended complaint alleged that defendants Rahenkamp and Star House Movers were engaged in a joint venture for the purpose, among others, of removing large palm trees from the premises at 344 Cedar Avenue, Long Beach; the defendant Rahenkamp was

The second cause of action alleged, among other things, that on November 22, 1961, defendants Rahenkamp and Star occupied the premises at 344 Cedar Avenue by right of permission or license from the owner, and on said date Mr. Gettemy was working there at the invitation and request of defendants.

The third cause of action alleged, among other things, that defendant Star secured from the Building and Safety Department of Long Beach a permit to demolish and remove a structure and trees from premises at said 344 Cedar Avenue ; that defendant Star through its officers knew that under the Municipal Code of Long Beach such permit could be issued only to the holder of a valid building-contractor’s license issued by the State of California; that defendant Star, through its officers, knew that defendant Rahenkamp was neither licensed as a contractor with the city of Long Beach, nor licensed as a contractor by the state; that notwithstanding such knowledge, and the further knowledge that Rahenkamp was not properly, adequately, and safely equipped to perform the work at said 344 Cedar Avenue, the defendant Star negligently and unlawfully conspired with and selected Rahenkamp to perform the work called for by the permit.

Appellant (Star) contends that the evidence was insufficient to support the verdict and judgment against it; that the court erred in refusing to give certain requested instructions and in denying appellant’s request that the jury make special findings.

Defendant Star House Movers and Mr. Maddox, the owner of the premises at said 344 Cedar Avenue, entered into a written agreement whereby Star agreed to demolish a two-story house, remove three palm trees, and otherwise clear the lot at said address. Star made a subcontract with Rahenkamp

Rahenkamp testified that the method which he and Cox usually followed in removing a palm tree was to dig a trench around the tree so that they could cut the roots, undercut the tree at a 45-degree angle, and cause it to fall in a certain direction; the roots on palm trees are very much the same— they are about finger-size and are close together; it is a tedious task to cut such a tree down—it is like chopping into a bale of cotton; it is impossible to pull a palm tree down unless the roots are cut; if the roots are not cut, it is impossible to pull a palm tree over without breaking it off and leaving a stump.

On the day the demolition work was commenced at said address, Cox and Gettemy started digging and cutting around one of the two larger palm trees. They worked at the tree, off and on, between the times that Cox drove a truck to the dump and otherwise helped Rahenkamp, who was operating the crane in demolishing the house and in loading the truck. During the half hour before the tree fell, Gettemy was digging at one side of the tree, and Cox was at the other side of the tree undercutting it in the direction that he intended that it should fall. About 15 minutes before it fell, Rahen

It does not appear that an officer or employee of Star was at the Cedar Avenue premises during the demolition or tree-removing work.

The street-tree superintendent of the Parks Department of Long Beach testified that a customary method of removing a palm tree in the City of Long Beach is to top the tree by cutting off all the fronds; then to fasten guy lines to the tree; then undercut the tree at ground level—and while making the final cut to guide the falling tree with the guide lines; then to dig the stump out or remove it with a grinding machine. He testified further that another customary method is to top the tree as in the first method; then at a place about half way down, undercut the upper part of the tree and drop that part by using the guide lines; then by using a winch truck with a cable hooked to the remaining part of the tree pull the remaining part over—while digging under the tree. He testified further that it is not safe practice to remove a palm tree in a municipality by digging around and under the tree, and by undercutting it.

Cox testified that he did not intend to use a crane in laying the tree down or intend to guide its fall with anything other than undercutting.

Edwin Firnell, one of the owners and managers of Star House Movers, testified that the removal of a palm tree in a congested area is done differently from a removal in an open field; that, on a tree of the size of the one involved here, a cable is used for safety, but sometimes in a field or in the woods nothing is used as a guide. He also testified that before they made the subcontract with Rahenkamp he (witness) went to 344 Cedar Avenue in Long Beach and observed that automobiles were parked on the lot behind the house—that it was a ‘ ‘ downtown parking lot. ’ ’

Thomas Firnell, one of the owners and managers of Star, testified to the effect that ordinarily while the last undercut

Bahenkamp testified that he thought he had discussed with Edwin and Thomas Firnell the fact that he (Bahenkamp) did not have a contractor’s license; and that he thought that they knew he did not have such a license.

Mr. Gettemy had not had any experience in removing palm trees.

It is not contended that Mr. Gettemy was an employee of Star.

As above stated, appellant (Star) contends that the evidence was insufficient to support the verdict and judgment against appellant. It argues that Bahenkamp was an independent contractor, and that under such relationship Star would not be liable. It argues further that the verdict which was in favor of Bahenkamp and against Star is inconsistent, contradictory, and against law under any of plaintiffs’ alleged theories of the case as alleged in the first and second causes of action. In the first cause of action it was alleged that Bahenkamp was an agent of and joint venturer with Star. Appellant asserts that since those theories of agency and joint venture were rejected by the jury when it rendered a verdict in favor of Bahenkamp, there cannot be a judgment against Star based on those theories. In the second cause of action it was alleged that the defendants occupied the premises by permission of the owner, and that Mr. Gettemy was working there as an invitee of defendants. Appellant argues that in order for plaintiffs to prevail under this cause of action it would be necessary to prove an agency relationship between Bahenkamp, who actually occupied the premises, and Star, the alleged principal; that since the jury rejected the agency theory when it returned a verdict for Bahenkamp, there cannot be a judgment against Star on this cause of action; and that, assuming that Star did owe the duty of an occupier to Gettemy, there is no evidence that any unsafe condition existed—that when Bahenkamp first occupied the premises they were in safe condition without any patent or latent defects. The third cause of action was to the effect that there was independent negligence on the part of Star— independent of its negligence based on the theories of agency and joint venture—in that Star negligently and knowingly selected an unlicensed and improperly equipped person(Bahenkamp) as subcontractor to perform the work. Appel

Respondents (plaintiffs) assert that, under the evidence, Star’s liability may be based upon its independent conduct in that it violated legal duties it owed to decedent—duties which it owed as the employer of Rahenkamp, and as an occupier in control of the premises; and that since Star is liable by reason of its independent conduct, the verdict in favor of Rahenkamp is not inconsistent or contradictory as asserted by Star.

The mere fact that Rahenkamp was an independent contractor would not constitute a defense as to Star. “‘One who employs an independent contractor to do work which the employer should recognize as necessarily creating, during its progress, conditions containing an unreasonable risk of bodily harm to others unless special precautions are taken, is subject to liability for bodily harm caused to them by the absence of such precautions, if the employer (a) fails to provide in the contract that the contractor shall take such precautions . . . , or (b) fails to exercise reasonable care to provide in some other manner for the taking of such precautions.’ ” (Woolen v. Aerojet General Corp., 57 Cal.2d 407 , 410 [ 20 Cal.Rptr. 12 , 369 P.2d 708 ].) The reference to “others,” in that quotation, includes reference to employees of an independent contractor. (Ibid.) In the present case, the evidence was sufficient to support a finding by the jury that Star employed Rahenkamp as an independent contractor to do work which Star should have known would necessarily create an unreasonable risk to the employees of Rahenkamp, unless special precautions were taken. It was a large palm tree, about 40 feet high, 2 feet in diameter, and located near dwelling houses and a public sidewalk in the downtown area of Long Beach. There was evidence that: it was not safe practice to remove a palm tree in a municipality by digging around and under the tree, and undercutting it; and that the'customary methods of removing such trees included the use of mechanical devices and guide lines or cables

Star, as the general contractor, had the right to occupy the premises and in legal effect was an occupier thereof. In Revels v. Southern Cal. Edison Co., 113 Cal.App.2d 673 , 678 [ 248 P.2d 986 ], it is said: “The general rule is that a general contractor on a construction job who is in control of the premises is burdened with the duty to use ordinary care to provide a safe place for employees of a subcontractor to work, including the duty to warn such employees of a danger, either known to the general contractor, or discoverable by the exercise of ordinary care, or otherwise to protect the employees from injury, and to avoid exposing them to injury on account of dangerous conditions. ” As above stated, the

The evidence was sufficient to support findings of primary liability on the part of Star by reason of negligence in selecting the subcontractor and in failing to maintain the premises in a reasonably safe condition.

Appellant (Star) contends further that the court erred in refusing to give an instruction, requested by defendants, which stated in part as follows: “. .. If at the time of the injury ... said deceased was an employee of the defendant Star House Movers, Inc., and was performing service growing out of ... his employment ... and, if the alleged injury was proximately caused by such employment, then, under the Workmen’s Compensation Act ... the Industrial Accident Commission has exclusive jurisdiction to consider plaintiffs’ claim and to make or not to make an award therefor; and, in that event, your verdict in this action must be for the defendant . . . .” Appellant argues that the question as to employment of decedent by one or both of the defendants, and the failure of one or both of the defendants to secure compensation insurance, was raised by the pleadings. In connection with that argument, appellant refers to an allegation of the first cause of action to the effect that the

It is to be noted that the complaint does not allege that the decedent was an employee of Star, but does allege that he was an employee of a joint venture comprised of both defendants. The answer does not allege directly that decedent was an employee of Star, but does state that “should it be found that plaintiffs’ decedent was an employee” of Star, the exclusive remedy for plaintiffs would be the Workmen’s Compensation Act.

In any event, neither the joint pretrial statement nor the pretrial order states that any party is contending that the decedent was an employee of Star. Those documents recite that the decedent was an employee of Rahenkamp. In appellant’s opening brief (p. 13) it is stated it has never been contended in the pleadings or otherwise that the decedent was an employee of Star except that he was an employee of a joint venture (of Star and Rahenkamp). It is to be noted further that Rahenkamp conceded that he had not obtained compensation insurance. The requested instruction did not cover the point that plaintiffs would have a right to maintain an action against an employer who was uninsured. The court did not err in refusing to give the instruction.

Appellant also contends that the court erred in refusing to give its requested instruction which was in part: “While there are two defendants in this action, one of them

Appellant contends further that the court erred in refusing its request that the jury be instructed to make special findings regarding seven questions. Those questions were to the following effect: Was there a joint venture? Was Rahenkamp an agent? Was he an independent contractor? Did Star negligently select an independent contractor? Was decedent an employee of Rahenkamp ? Was he an employee of Star ? Was Star uninsured with respect to decedent ?

Appellant argues that the granting of its request for special findings would have clarified the general verdict. Whether or not the special interrogatories should have been submitted to the jury was a matter within the discretion of the trial court. (See Lloyd v. Kleefisch, 48 Cal.App.2d 408 , 417 [ 120 P.2d 97 ].) It does not appear that the court abused its discretion. The question as to whether decedent was an employee of Rahenkamp had been answered by Rahenkamp’s admission that he employed decedent. The question as to whether decedent was an employee of Star did not relate to a matter in controversy, as above shown—no party was contending that decedent was employed by Star.

The notice of appeal states that Star also appeals from the order denying its motion for a nonsuit. Such an

The judgment is affirmed.

Fount, J., and Lillie, J., concurred.

A petition for rehearing was denied April 8, 1964, and appellant’s petition for a hearing by the Supreme Court was denied May 13, 1964.