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


Civ. 14203.

Decided: April 20, 1950

Hallinan, MacInnis & Zamloch, Nicholas Alaga, San Francisco, for appellants. Alexander, Bacon & Mundhenk, San Francisco, Herbert Chamberlin, San Francisco, for respondents.

Plaintiff appeals from a judgment of nonsuit entered at the close of his case. The action was one for personal injuries incurred by plaintiff in a fall from a ladder in defendant's retail store. Plaintiff gave the only testimony directed to the facts leading up to his injuries. That evidence may be summarized as follows: Plaintiff entered defendant's store to purchase a tank cover. He there met an employee, showed him a pattern of the tank cover and told him what he wished to buy. The employee asked plaintiff to hold a ladder which led to a balcony in the store and while plaintiff did so the employee mounted the ladder to the balcony. While the employee was holding the ladder at the top he invited plaintiff to ‘come on up here.’ Plaintiff had climbed the first two or three steps of the ladder when the employee took the pattern from him and went away. The last thing that plaintiff remembers ‘The ladder starts to slip—the slip of the ladder.’ When plaintiff regained consciousness he was in a hospital.

Applying the settled rule applicable to nonsuits that the evidence must be construed most strongly in plaintiff's favor the evidence above recited, while obviously sketchy, was sufficient to take the case to the jury. Ladders properly constructed, placed and maintained do not ordinarily slip. This ladder was under the exclusive control of defendant and his employee. The jury might reasonably infer that the employee knew that the ladder was apt to slip from his request to plaintiff to hold it. These facts are sufficient to bring the case within the res ipsa loquitur rule. Haag v. Harris, 4 Cal.2d 108, 48 P.2d 1; Michener v. Hutton, 203 Cal. 604, 265 P. 238, 59 A.L.R. 480; Hinds v. Wheadon, 19 Cal.2d 458, 121 P.2d 724.

Defendant argues that there was a fatal variance amounting to a failure of proof. The complaint alleged that ‘said defendants did negligently permit said step ladder to become dangerous, defective and in an unsound condition so that plaintiff * * * was caused to fall off said step ladder * * *.’

Defendant says: ‘The cause of action stated in the complaint charged respondent with primary liability. The theory of proof advocated by appellant invokes the doctrine of respondeat superior and contemplates a cause of action charging respondent with secondary liability, since the liability of a negligent employee is unquestionably a primary one.’

This argument ignores the rule that the act of an agent or employee acting for his principal or employer within the scope of his authority or employment may be pleaded as the act of the principal or employer. The rule is thus stated in 57 C.J.S., Master and Servant, § 614, p. 386: ‘In order to state a cause of action against defendant for a wrong committed by his servant, the ultimate fact necessary to be alleged is that the wrongful act was in legal effect committed by defendant. This may be alleged either by alleging that defendant by his servant committed the act, or, without noticing the servant, by alleging that defendant committed the act.’ See 7 Labatt, Master and Servant, 2d Ed., sec. 2527, p. 7776 and the cases collected in the note in 4 A.L.R.2d 292.

While we have found no tort case in this State applying this rule it is well settled that a contract made by an agent may be pleaded as having been made by the principal, omitting all mention of the agent (1 Cal.Jur., Agency, sec. 138, p. 963), and we can see no good reason for applying a different rule of pleading in cases sounding in tort.

The knowledge of the employee of the dangerous condition of the ladder which the jury might reasonably infer from his conduct above recited was sufficient to bind the employer and the facts would support the conclusion that defendant had negligently failed in his duty to the plaintiff ‘to use ordinary care for the safety of persons he invites to come upon the premises.’ Hinds v. Wheadon, supra, 19 Cal.2d 458, 460, 121 P.2d 724, 726. Where the employee, as here, invited the business visitor to mount the ladder and held it while he did so, only leaving it after the plaintiff was on the second or third step, the question whether the danger should have been readily apparent to plaintiff was certainly a question of fact.

The attempted appeal from the order denying a new trial is dismissed. The judgment is reversed.

DOOLING, Justice.

NOURSE, P. J., concurs.