Dahl-Beck Electric Co. v. Rogge

defendant George Rogge, on his cross-complaint, and finding in favor of said defendant and defendant Jack Stradford on plaintiff’s complaint.

The Facts

In July 1964 plaintiff, an electrical contractor, was performing work on the premises of the University of San Francisco pursuant to contract. A representative of plaintiff telephoned Rogge and asked if Rogge had a backhoe available for trench digging. Rogge sent Stradford and the backhoe to the jobsite. The rate agreed to be paid to Rogge was $14 per hour for providing one man and the backhoe. Stradford, as the operator of the equipment, was paid by Rogge on the basis of the total time spent on the backhoe.

Stradford reported to Robert Albright, plaintiff’s project-foreman. Albright drove a stake and told Stradford to begin digging a trench at that point. He also told Stradford how far he should dig and to be careful because there were pipes and a water main in the area. During the process of the backhoe digging operation a four-inch water main dropped into the ditch and as a result plaintiff was required to make emergency repairs. The complaint in this action sought to recover the cost of such repairs from Stradford and Rogge.

Stradford testified that although the pipe was exposed in the process of the digging, he did not undercut it. He stated that the soil which came out from under the pipe “sloughed” away and that there was nothing he could do to prevent this sloughage. He also stated he did not use any shoring to brace the pipe.^[1]

Defendant Rogge testified that he did not have a contractor’s license at the time of the events in this case and that he had never had a contractor’s license. He also stated that- he did not “bid” on plaintiff’s job and that he did not have a written contract for the work with plaintiff or the University of San Francisco. He further testified that he had done other work for plaintiff before 1964 and that he was paid on an

since, if their negligence proximately contributed to the damage complained of, they would be liable to plaintiff in any such capacity. In this regard, we particularly note that if Stradford, as the subagent of Rogge, were negligent, that negligence would be imputed to Rogge, and Rogge, in turn, would be liable therefor to plaintiff. (See Transcontinental & Western Air v. Bank of America, 46 Cal.App.2d 708 , 713 [ 116 P.2d 791 ] ; Smith v. National Bank of D.O. Mills & Co., 191 F. 226 ; see Civ. Code, § 2349.) We also observe here that Stradford, as the lawfully appointed subagent of Rogge, represented plaintiff, as principal, in like manner with Rogge. (See Towt v. Pope, 168 Cal.App.2d 520 , 531 [ 336 P.2d 276 ] ; Malloy v. Fong, 37 Cal.2d 356 , 372-375 [ 232 P.2d 241 ] ; Civ. Code, §2351.)

The jury in the present case was instructed on negligence, contributory negligence, and proximate cause. The jury returned a verdict in favor of Rogge and Stradford. This verdict implies either that Rogge and Stradford were not negligent, or, if they were, that plaintiff was contributorily negligent and that such negligence was a proximate cause of the damage claimed to have been suffered. Either finding is supported by substantial evidence in the record.

Status of Defendant Bogge

The question whether Rogge was an independent contractor was submitted to the jury with detailed instructions. Plaintiff contends that the question should have been decided as a matter of law because the uncontradieted evidence indicated that Rogge was an independent contractor.

Before evaluating this claim we note that Rogge’s status is crucial to his recovery on the cross-complaint. Any person who meets the definition of a contractor as set out in Business and Professions Code section 7026^[2] may not bring an action for compensation unless he is duly licensed under the laws of the state. (Bus. & Prof. Code, § 7031.) Defendant Rogge

v. Eichler Homes, Inc., 221 Cal.App.2d 487 , 498 [ 34 Cal.Rptr. 648 ].)

In the instant ease the court quite properly, submitted the entire issue of the status of the parties to the jury for its disposition.

The Work Reports

Handwritten reports of the falling of the pipe were prepared by Albright. The trial court refused to admit these reports into evidence when counsel objected on the ground that they included hearsay material. Plaintiff argues .that it was error to exclude these reports but cites no authority for his- position.^[3] "When a point is merely suggested by appellant’s counsel, with no supporting argument or authority, it will be deemed to be without foundation and requires no discussion. [Citation.]” (Thompson v. Keckler, 228 Cal.App.2d 199 , 213 [ 39 Cal.Rptr. 267 ] ; In re Steiner, 134 Cal.App.2d 391 , 399 [ 285 P.2d 972 ].) We do observe, however, that section 1271 of the Evidence Code, which allows an exception to the hearsay rule for business records, requires the judge to find that the sources of information and the method and time of preparation of the record “were such as to indicate its trustworthiness.” In the instant case Albright testified that he was not on the scene when the pipe fell into the trench which Stradford was digging. Consequently, he had no opportunity to actually observe what happened. Such a report is similar to an accident report which is not admissible as a business record because it is made on statements of participants and bystanders and measurements, deductions and conclusions of the person compiling the report. (Behr v. County of Santa Cruz, 172 Cal.App.2d 697 , 705 [ 342 P.2d 987 ] [investigative report re origin of fire] ; Hoel v. City of Los Angeles, 136 Cal.App.2d 295 , 309-310 [ 288 P.2d 989 ] [accident report by police officers].) The court properly excluded the evidence.

Errors in Instructions

Plaintiff contends that- the only explanation for the jury’s verdict is that the instructions were ambiguous or conflicting. The several instructions claimed by him to be deficient are discussed below.

Plaintiff objects to the following instruction; “You are instructed that if you find from the instructions previously given you that the defendant Rogge was required to have a contractor’s license, nevertheless, his failure to have one will not bar him from offsetting as a defense, if you find that he was entitled to an offset, such sums that would otherwise be due him for the work done.” Plaintiff claims that this instruction is in conflict with an instruction that told the jury that a contractor cannot bring an action in this state for the collection of compensation for the performance of any act or contract while .engaged in the business of a contractor without alleging and proving that he was a duly licensed contractor. We cannot agree because both instructions reflect correct statements of the law. “It is well settled that the failure to obtain a required contractor’s license will bar the contractor from recovering for his work in an action brought by him, but will not bar him from offsetting as a defense sums which would otherwise be due him under the illegal contract.” (S & Q Constr. Co. v. Palma Ceia Dev. Organization, 179 Cal.App.2d 364 , 367 [ 3 Cal.Rptr. 690 ] ; see Steinwinter v. Maxwell, 183 Cal.App.2d 34 , 38-39 [ 6 Cal.Rptr. 496 ] ; Culbertson v. Cizek, 225 Cal.App.2d 451 , 473 [ 37 Cal.Rptr. 548 ].)

Plaintiff claims error in the following instruction: “There is, however, an exception to the foregoing license requirement. The license requirement does not apply to any person who furnishes or rents to another equipment with an operator at an agreed price of so much an hour as his sole compensation and the operator remains under the general and immediate supervision, direction and control of the party renting the manned equipment.” The basis of the claimed error is that “hourly compensation is not the test” for determining when an individual must be a licensed contractor. Plaintiff cites no authority for his assertion^[4] which must, in any event, be rejected. We observe that according to the provisions of Business and Professions Code section 7053, compensation in wages clearly is the most important test in ascertaining whether an individual is excepted from the licensing requirements. According to that section “any person who engages in the activities herein regulated, as an employee with

wages as his sole compensation.” need not he licensed as a contractor. We also observe that such eases as Rodoni and Borello, supra, are clear authority for this instruction which accurately states the applicable law where a person rents or furnishes equipment on an hourly basis as his sole compensation, and has nothing to do with the supervision, direction and control of the work being performed by the equipment. Plaintiff also claims that the subject instruction is confusing because it is impossible to ascertain who is “renting” the equipment. Actually, any real confusion seems dissipated by reading the entire instruction. And, of course, it is well established that a judgment will not be reversed for error which can be found only by detaching a portion of an instruction from context.

The next instruction alleged to-be erroneous reads as follows: “If, however, you find that Mr. Rogge was an agent of Dahl-Beck Electric Company, acting at all times under the latter’s supervision, direction and control, as to the detail, method and progress of the work, with wages as his whole compensation, then the license requirement is not applicable, and you may allow recovery on the defendant’s cross-complaint, if you find that he is otherwise entitled to recover from the plaintiff.” Plaintiff objects to this instruction because Rogge was personally never on the jobsite and did not work under the supervision of plaintiff. Apparently plaintiff believes the instruction is therefore confusing. No authority of any sort is cited to support plaintiff’s contention. The instruction is a correct expression of the law. It clearly states that if the jury found Rogge to be plaintiff’s agent rather than a contractor, Rogge was entitled to recover if he proved the allegations and items of his cross-complaint.

The court gave an instruction^[5] on agency which plaintiff claims has no application to the case and should never have been given. However, the record discloses that this instruction was proposed by plaintiff and was given as proposed.

The jury was instructed on the subject of culpable negligence of an employee as follows: “You are instructed

that Section 2865 of the Labor Code provides as follows: an employee who is guilty of a culpable degree of negligence is liable to his employer for the damages thereby caused to the employer.”^[6] Plaintiff particularly objects to this instruction because the court refused to give two additional instructions defining “culpable negligence.” Although the refused instructions do not appear in the clerk’s transcript among the instructions which were requested by plaintiff and refused by the court, the parties agreed that the instructions hereinafter referred to were submitted to and refused by the trial court, and that for purposes of this appeal we may consider them as if they were included in the clerk’s transcript.

The first of these two additional instructions has nothing to do with the definition of 1 ‘ culpable negligence. ’ ’ It reads as follows: “You are instructed that if [sic] should find that Defendant Rogge and by the same token Stradford, are not independent contractors, then, and in that event, you are instructed that if you find they are guilty of negligence, they are nonetheless liable to Plaintiff for the damage caused to Plaintiff.” This instruction merely told the jury that even if Rogge and Stradford were not independent contractors they would be liable to plaintiff if they were negligent. It is not a correct expression of the law since it does not include the essential element of proximate cause. The subject of this instruction, morever, was aptly covered by other instructions which advised the jury that if Rogge and Stradford were negligent and their negligence was the proximate cause of damage to plaintiff, the latter, if he was not guilty of contributory negligence which was a proximate cause of the damage, was entitled to recover the damages proved by it by a preponderance of the evidence. There was no error, therefore, in refusing to give this instruction.

The other instruction offered by plaintiff reads as follows: “You are instructed that culpable negligence is: ‘ Failure to exercise that degree of care rendered appropriate by the particular circumstances, and which a man of ordinary prudence in the same situation and with equal experience would not have omitted.’ [Citation.] In other words, culpable negligence is ordinary negligence as heretofore defined by me to vou. ’ ’

Plaintiff maintains that the trial court should have defined “culpable negligence” pursuant to the definition submitted by him in order to obviate any possible confusion which might cause the jury to decide that “culpable negligence” was a type of negligence different from that which the trial judge had already defined- to the jury. We do not apprehend any potential confusion since the definition of “culpable” offered by plaintiff merely refers to ordinary care concerning which the trial court gave detailed instructions. The proposed instruction simply equates culpable negligence with ordinary negligence. It did not add anything to the law as included in the other instructions.

Although we conclude that the requested instruction defining culpable negligence was extraneous, a thorough consideration of the meaning of the provisions of Labor Code section 2865 will further clarify our reasons for this conclusion. In this connection we note that certain provisions of the Labor Code indicate that there may be a distinction between- the obligation imposed upon an agent, and those imposed upon an employee under the statutes passed for the benefit or protection of employees^[7] An agent has the duty to- use reasonable skill and diligence and if he violates this duty he is liable for any loss which his principal may sustain as the result of his negligence. (Poile v. Stockton Merchants Assn., 176 Cal.App.2d 100 , 104 [ 1 Cal.Rptr. 284 , 76 A.L.R.2d 1151 ] ; Leland v. Oliver, 82 Cal.App. 474 , 479 [ 255 P. 775 ].) Apropos Labor Code section 2865, no case has been found or cited, which defines “culpable degree of negligence” as it is set out in this section. (See Division of Labor Law Enforcement v. Barnes, 205 Cal.App.2d 337 , 349 [ 23 Cal.Rptr. 55 ], where the section is discussed but the term " culpable negligence ’ ’ is not defined.) We observe that Labor Code section 2854 provides that " One who, for a good consideration, agrees to serve another, shall perform the service, and shall use ordinary care and diligence therein, so long as he is thus employed,” and that Labor Code section 2850 provides, that a gratuitous