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District Court of Appeal, First District, Division 2, California.




Civ. 12247.

Decided: April 28, 1943

John L. McNab, of San Francisco, and D. W. Brobst, of Oakland, for appellants. Weinmann, Quayle & Berry, of Oakland, for respondents James Campbell and Richard Hocking. Nichols & Richard and Leonard Dieden, all of Oakland, for respondents James Pegnem and State Compensation Insurance Fund.

These three actions were brought for personal injuries by Hocking, Pegnem and Campbell against Fong Wan and his two sons Richard R. Fong and Edward E. Fong. The cases were consolidated for trial and the jury returned a verdict in favor of each of the plaintiffs upon which three judgments were entered. The State Compensation Insurance Fund was allowed to intervene, it being a compensation insurance carrier for the employer of the three plaintiffs, and it also had judgment against defendants to recover compensation paid. The defendants above named appeal from the judgments entered against them.

The plaintiffs, Hocking, Pegnem and Campbell, were employed by Witt as plasterers in remodeling the New Shanghai Cafe in Oakland, which property stood in the names of Richard and Edward Fong, but which was managed by Fong Wan, who was an alien incapable of holding real property in his own name. The plaintiffs were injured when they fell from a scaffolding placed in front of the New Shanghai Cafe building. One Lloyd Dawson, a contractor, had supervised the erection of the scaffolding and had sublet the plastering job to Witt. Dawson was paid $10 a day plus a fixed percentage of the cost if he kept the cost of building within certain limits; he supervised the work, but all workmen, insurance, both social security and workmen's compensation, and materials were paid for through Fong Wan's office; Dawson had not posted a bond, but he secured the building permit; and some testimony was given that Fong Wan was around the job frequently, and urged the workmen to rush the completion of the remodeling. The scaffolding was constructed in the general method prescribed by building regulations put out by the Industrial Accident Commission in their safety rules. However, another contractor was permitted to testify that contractors ordinarily interlaced supports on the building side of the scaffolding, and used two ledgers instead of the one required by these safety rules. Two of the plaintiffs testified that they noticed that the ledger holding the planks on which they worked was single, and hence not interlaced. Fong Wan testified that he was making the improvements for himself and for his sons. He put some of his own funds into the job. He managed the New Shanghai Cafe when it was in operation and his sons had no interest in the venture, other than their ownership of the realty. The rentals from the real property were collected by him, and he would turn part over to his sons. At the time they purchased the real property, Fong Wan told the sons that they would have to take title because he was an alien who could not hold property.

Appellants, on the basis of Lloyd Dawson's deposition, contend that there is insufficient evidence to support the implied finding of the jury that Dawson was an employee of the appellants, but they contend that this evidence shows that he was an independent contractor having complete control over the construction of the improvements, though paid upon a per diem basis. After this deposition was taken special counsel was employed for the witness and his testimony at the trial was directly contrary to that given in his deposition. The jury chose to accept the testimony given at the trial, and that ends the controversy.

Next appellants contend that the court committed reversible error in allowing the expert testimony relating to the custom and usage of building contractors in constructing scaffolding in the face of the safety rules of the Industrial Accident Commission which required less bracing than that testified to.

Whether the scaffolding was constructed in full compliance with these safety regulations is not clear. There was some testimony tending to show that it was insecurely nailed, and that, in other respects, it was negligently built. The appellants do not contend that the construction complied strictly with these safety rules. Their point is that testimony of the “usual and standard custom and practice” was improperly admitted over their objection. When this testimony was offered, their objection was that these “safety rules” were the best evidence. If the controversy had been between an employer and employee there would be much merit in the objection. But here all the respondents were employees of the sub–contractor Witt. The duty to provide for them a safe place of employment arose outside of the employer–employee relation, and it is in that relation that the rules of the Industrial Accident Commission apply. That such rules do not determine a standard of care as to those who are not in the employer–employee relation see Hayden v. Paramount Productions, Inc., 33 Cal.App.2d 287, 91 P.2d 231.

Next it is argued that the respondents were guilty of contributory negligence as matter of law. Two of them testified that they looked at the scaffolding before going up and saw that it was constructed with but one ledger, the third testified that he paid no attention to it. If the only claimed defect in the construction of the scaffolding was the use of one ledger the argument of appellants would be more persuasive. But where other defects were claimed, some of which were not patent, the question of contributory negligence was properly left with the jury. To put it in another way, where there is evidence of negligence in the construction or maintenance of an instrumentality, which is not patent and cannot be observed by the use of ordinary care, the question of the negligence of the party using the instrumentality is one of fact.

Finally it is argued that the judgment should not stand against appellant Fong Wan since he was merely the agent of his two sons. It appears that the sons were the record title owners of the premises, that Fong Wan, independent of the sons, conducted the cafe upon the premises, that plans to repair the building were found impractical, hence the contract to construct a new building. Into this building Fong Wan put some of his own funds, and paid for the work and materials. Whether his status was that of a trustee, agent, or equitable owner cannot be determined from the record. In all his dealings with labor and material he did not represent himself as agent for his sons, but held himself as at least a part owner in the premises. He was sued as such, and the burden was upon him to prove that his activities were limited to the relation of agent for his sons. Thus the question of that relation was one of fact for the jury, and the implied finding that he was an owner of some interest is supported by substantial evidence.

The judgments are affirmed.

NOURSE, Presiding Justice.

SPENCE, J., concurs.

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