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District Court of Appeal, First District, Division 1, California.


No. 12380.

Decided: August 02, 1943

John J. Taheny, of San Francisco, for appellant. Treadwell & Laughlin, of San Francisco (Robert A. Grantier and Raymond M. Farley, both of San Francisco, of counsel), for respondent.

Plaintiff was employed as a seaman aboard the S. S. President Pierce, and while carrying a case of canned goods on his shoulder up a stairway in the regular course of his duties, he slipped and fell, and was injured. The accident happened while the ship was four days out from San Francisco, on its return from the Orient, and plaintiff brought this action for damages against his employer under a federal statute known as the Jones Act, 46 U.S.C.A. § 688. The cause of action was based on allegations to the effect that plaintiff's injuries were caused by his employer's negligence in failing to maintain the stairway in a safe condition, the particular charge made being that it failed to keep the steps free from refuse and other foreign substances, as the result of which plaintiff slipped on an orange peel which had been carelessly discarded on the stairway by a fellow employee. The action was tried before a jury and defendant moved for a directed verdict. The motion was denied and the jury returned a verdict in favor of plaintiff for $1,750. Defendant then moved for judgment in its favor notwithstanding the verdict, and the motion was denied. Judgment was entered on said verdict in favor of plaintiff; but the trial court thereafter granted defendant's motion for a new trial; and from the order made in that behalf plaintiff appeals.

Insufficiency of the evidence was not specified in the order as a ground for granting the motion; consequently “it will be conclusively presumed that the order was not based upon that ground”. § 657, Code Civ. Proc. The order recites merely that the motion was granted upon the grounds of “error in law at the trial and excepted to by the defendant,” and in support of the order defendant contends that the trial court erred in giving and refusing to give certain instructions, and in denying defendant's motions for directed verdict and for judgment notwithstanding the verdict. It is our conclusion that the order is not sustainable on either of those grounds.

The following are the essential facts: The ship had four decks, designated as decks “A”, “B”, “C”, and “D”. The dining room for passengers was located on B deck and the engine crew and sailors ate in a messroom on C deck. Plaintiff was working as a galley scullion and as part of his daily duties he was required to bring up food–stuffs from the storeroom located on D deck to the galley on B deck. The food supplies kept in this storeroom were dry stores, such as canned goods, beans, cereals, etc.––no fresh fruits or vegetables; and in going to and from the storeroom it was necessary to use this particular stairway. It ran from C deck only to the storeroom on D deck, and was used exclusively by members of the crew, the passengers not being allowed below B deck. On the morning of the accident, about 10:15, plaintiff went down this stairway and got from the storeroom a case of canned vegetables, containing six one–gallon cans, each weighing about 7 1/2 pounds. He placed the case on his right shoulder, held it with his right hand, and using his left hand to hold on to a railing on the left side of the stairway he started up the stairs to C deck. When he reached the fourth or fifth step from the top his foot slipped from under him and as he fell he put his right hand out in front of him to protect his face. The case of vegetables fell on his hand, the edge of one of the cans severely lacerating and breaking the bone of his right little finger. It was a comminuted fracture and the finger was “hanging off.” He went immediately to the office of the ship's doctor, but the doctor was not in his office at the time and plaintiff waited for him for about 45 minutes. The doctor then stitched the finger together with two stitches and placed a metal clamp on the finger to hold it. The finger was then bandaged with a splint to hold it in place, but afterwards it became infected, and he was still suffering from the effects thereof at the time of trial. Immediately after plaintiff had fallen he looked back down the stairway to see what had caused him to slip, and he saw a large piece of orange peel that had been stepped on; and as soon as the doctor had finished bandaging his finger plaintiff went back to the stairway, picked up the orange peel and threw it into a garbage receptacle which was placed on C deck about four feet from the head of the stairway. The evidence supporting the implied finding of the jury that the presence of the orange peel on the stairway was due to the carelessness of some fellow employee was in substance as follows: Every day fresh fruit was placed in the crew's messroom on C deck, and it was the custom of the crew, after finishing their meals, to take the fruit out on C deck and eat it while standing around talking with each other. This was done with the knowledge of the company. The men had been instructed to put any refuse in the receptacles which had been placed on the deck for that purpose, but it was common for them to throw the fruit peels and other refuse on the deck or down the stairway. Sometimes this was done deliberately, and at other times in aiming for the garbage receptacle they would miss it and leave the refuse lying on the deck, and afterwards it would be kicked down the stairway, either purposely or accidentally; and there is evidence showing that the ship's officers were aware of this practice. In this regard the steward in charge of the storeroom testified that many times he had seen and picked up refuse on this stairway leading to the storeroom which members of the crew had dropped on the deck and then kicked so that it had fallen on the stairs; also that many times he had seen refuse and peelings lying on C deck close to the stairway. The doctor also testified that many times during the course of his daily inspection of the ship he had picked up pieces of peeling or debris lying on C deck, and other witnesses testified that they had on many occasions seen orange peelings and other refuse on C deck in the vicinity of the garbage receptacle and on the stairway leading to the storeroom. Several members of the crew testified that on this particular morning they had made their regular inspection of the ship between 10 and 11 o'clock, and that they did not remember having seen any orange peel on the stairway; and one of them testified that shortly after the accident he went to the stairway for the purpose of seeing if there was any orange peel there and that he found none. But the testimony so given at best could do no more than raise a conflict with that given by plaintiff. The jury's determination of that issue is therefore conclusive. Furthermore, the evidence definitely shows that the orange peel could not have been discarded by any of the passengers, because passengers were not allowed to go below B deck and consequently had no access to C deck or the stairway in question; nor is there the slightest evidence from which the inference may be drawn that the presence of the orange peel on the stairway was due to some malicious act.

With respect to the matter of the instructions, the trial court gave several upon the doctrine that an employer is responsible for the negligent acts of an employee committed within the scope and in the course of his employment. Defendant concedes that the doctrine was correctly stated in some of them, but three of those given are challenged upon the ground that they omitted the qualification that in order to hold the employer liable it must be shown that the negligent act of the employee was committed within the scope and in the course of the employment. The first of the three instructions so given was as follows: “You are instructed that the master or captain of the ship had the authority and the duty to maintain discipline aboard ship and to issue such orders as were reasonably necessary to keep the stairways and passageways safe for use by the employees. You are also instructed that it was the duty of the officers and crew to obey all reasonable orders and commands issued by or under the authority of the master or captain pertaining to the safety of stairways and passageways. If you find from the evidence that any officer or member of the crew negligently deposited or negligently caused to be deposited, a fruit peeling on the stairway in question, whether because of the absence of a rule or in disobedience of a rule prohibiting the same, and if you further find that the stairway in question was thereby made unsafe for use by the plaintiff, then you are instructed that under such circumstances, if you so find, the defendant is liable in damages for injury, if any, proximately caused plaintiff thereby.” The other two instructions complained of are couched in different language, but the qualification above referred to was omitted therefrom, and defendant contends, therefore, that all three were prejudicially erroneous.

Plaintiff's answer to defendant's contention is two–fold: first, that the challenged instructions were not erroneous for the reason that as a matter of law the evidence established that the negligent act of the employee which caused plaintiff to slip and fall was committed by said employee within the scope and in the course of his employment; and secondly, that in any event the jury could not have been misled by the omission complained of because it was embodied in other instructions which the trial court gave. Both points, in our opinion, are well taken.

As shown by the authorities cited in plaintiff's briefs, where an employee is required to live or board on the premises where he is employed, either by the terms of the contract or the necessities of his work, the performance of such acts on his part as are necessary to his life, comfort and convenience, although strictly personal to himself and not acts of service, are held to be incidental to the service, and therefore are deemed to fall within the scope and in the course of his employment, even though he is not actually performing the particular tasks for which he was employed. Union Oil Co. v. Industrial Acc. Comm., 211 Cal. 398, 295 P. 513; Whiting Mead Co. v. Industrial Acc. Comm., 178 Cal. 505, 173 P. 1105, 5 A.L.R. 1518; see, also, Campbell on Workmen's Compensation, Vol. 1, §§ 196, 208. And in the cases of persons employed aboard ship, it is held that such employment “includes not only the performance of the physical tasks required of him, but also includes the performance of such ordinary tasks for his own comfort and convenience as are incident to and necessarily connected with the employment” (States S. S. Co. v. Berglann, 9 Cir., 41 F.2d 456, 457); and that this includes the taking of meals, sleeping, resting, etc. Charles R. Davidson & Co. v. M'Robb, [1918] L.R.App.Cas. 304, 327. Here it is admitted that the fruit was supplied by the employer to the members of the crew as part of their regular meals, and that they were permitted to eat the fruit outside on C deck; and the uncontroverted evidence shows that the piece of orange peel on which plaintiff slipped had been carelessly discarded by one of the crew while eating the fruit on C deck. Therefore, applying the foregoing legal principles to the above uncontroverted facts, it appears as a matter of law that the negligent act of the employee was committed within the scope and in the course of his employment.

Defendant does not claim that the eating of the fruit would not be in the course of the employment, but contends that the instructions were not predicated upon eating the fruit, but upon the disposal of the refuse from it, and that the disposal of the peel was not necessarily incidental to eating the fruit; but there is no evidence that the disposition of the peel was intentionally wanton or malicious, and obviously it was as much incidental to the employment as the eating of the fruit itself, and the discarding of the refuse from the fruit must have been contemplated by the employer because garbage receptacles were placed on C deck and the crew was instructed to place the refuse therein.

Defendant states that in determining whether the employee “was acting in the scope of his employment the jury should have been permitted to consider the fact that he ate the fruit in an unauthorized place and likewise disposed of the refuse in an unauthorized and forbidden place, neither of which situations were covered by the instructions.” The uncontroverted facts of the case show, however, that the custom of the men to eat the fruit out on C deck was carried on with the approval of the ship's officers, and the fact that the crew may have violated instructions as to the disposal of the refuse could not have the effect of relieving defendant of liability, because it has been held in numerous cases that an employer is liable for acts of his employee within the scope of the latter's employment notwithstanding such acts are done in violation of rules, orders or instructions of the employer. 35 Am.Jur. p. 993; Ruppe v. City of Los Angeles, 186 Cal. 400, 199 P. 496; Johnson v. Monson, 183 Cal. 149, 190 P. 635; Griffin v. Industrial Acc. Comm., 19 Cal.App.2d 727, 66 P.2d 176; Dowdall v. Gilmore Oil Co. Ltd., 18 Cal. App.2d 1, 62 P.2d 1051.

Furthermore, it is apparent, as plaintiff points out, that defendant was not prejudiced by the challenged instructions because the omitted element was covered by the following instructions which were given to the jury: “You are instructed that an employer is responsible for the acts or omissions of his employee, agent or servant committed by such employee, agent or servant within the course and scope of such employment, agency or service.” “The negligence of an officer or employee of the defendant committed while such officer or employee is engaged within the course and scope of his employment is in law the negligence of the defendant.” “You are instructed that any negligence committed by an officer or employee of defendant cannot be imputed to such defendant unless it be shown that such negligence was committed by such officer or employee while engaged within the course and scope of his employment.” (Italics added.) Defendant contends that the instructions complained of were formula instructions and the error in omitting the above element could not be cured by the giving of other general instructions. Doubtless such is the general rule, but there are several well recognized qualifications thereto, one of them being that where the so–called formula instructions, when separated from the other instructions given, omits an element essential to recovery by plaintiff, but the very method of giving the so–called formula instructions indicates plainly that they were not intended, nor did they purport to state the several elements essential to a verdict as such in detail, but instead, those matters are made the subject of separate specific instructions, the giving of the so–called formula instructions does not constitute prejudicial error. Brower v. Arnstein, 126 Cal.App. 291, 14 P.2d 863. And such was the case here, for at the beginning of the court's charge and as part thereof the court stated: “If in these instructions any rule, direction or idea be stated in varying ways, no emphasis thereon is intended by the Court, and none must be inferred by you. For that reason, you are not to single out any sentences, or any individual instruction or portion thereof, and ignore the others, but you are to consider all the instructions as a whole, and to regard each instruction in the light of the other instructions.” (Italics added.) Moreover, as said in Reuter v. Hill, 136 Cal.App. 67, 28 P.2d 390, which is cited with approval in Klenzendorf v. Shasta, etc., School Dist., 4 Cal.App.2d 164, 40 P.2d 878, there is a disposition to relax the rigid application of the rule regarding formula instructions when the record fails to show a miscarriage of justice, and that, in our opinion, is the situation here. As will be seen, the instructions above quoted were clear and correct statements of the law; and that being so, it cannot be fairly said that the jury was misled by the omission of that element from those challenged or that the defendant was prejudiced thereby.

Likewise without merit is defendant's contention that the trial court erred in refusing to give defendant's proposed instruction No. 7, for the reason that the subject matter thereof was covered by other instructions which the court gave, especially those appearing on page 238 of the transcript.

Defendant's second major point, that the trial court erred in denying its motions for a directed verdict and for judgment notwithstanding the verdict, is based largely upon the contention that the evidence fails to show that the negligent act of the employee in discarding the orange peel was committed within the scope and in the course of his employment. This contention has already been disposed of adversely to defendant's view in the consideration of the matter of the instructions. It is true that most of the cases involving the question as to whether a particular act was committed or performed by an employee within the scope and in the course of his employment are cases arising out of the application of the Workmen's Compensation Act, St.1937, p. 265, § 3201 et seq.; but as will be seen from the following cases, the same rules of measurement are used in determining that question in cases of respondeat superior. Curcic v. Nelson Display Co., 19 Cal.App.2d 46, 64 P.2d 1153; Breland v. Traylor Eng., etc., Co., 52 Cal.App.2d 415, 126 P.2d 455; Richards v. Metropolitan Life Ins. Co., 19 Cal.2d 236, 120 P.2d 650. Nor was it necessary for the plaintiff to establish that the defendant had actual or constructive knowledge of the presence of the orange peel on the stairway. Such proof is necessary only where the dangerous condition is brought about by natural wear and tear, or third persons, or acts of God, or by other causes which are not due to the negligence of the owner or his employees. Where, as here, the dangerous condition is brought about by the employees acting within the scope of their employment, knowledge of the condition is imputed to the defendant as a matter of law. Hatfield v. Levy Brothers, 18 Cal.2d 798, 117 P.2d 841; Lorenz v. Santa Monica, etc., School Dist., 51 Cal.App.2d 393, 124 P.2d 846. Therefore the court would not have been legally justified in granting either of defendant's motions on that ground.

The remaining points urged by defendant in support of the trial court's order are incidental to those already discussed, and do not require special attention.

The order is reversed.

KNIGHT, Justice.

PETERS, P. J., and WARD, J., concur. Rehearing denied; WARD, J., dissenting.

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