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District Court of Appeal, Fourth District, California.

ANGLIN v. CONWAY et al.*

Civ. 4615.

Decided: April 07, 1953

Wallace & Cashin, Los Angeles, for appellant. Roger C. Donahue, Bakersfield, for respondent.

Plaintiff and respondent brought this action against Alline E. Conway, Estate of H. A. Conway, Deceased, and George Harwood, alleging in eight separate causes of action, that defendants became indebted to respondent's assignors for labor and services rendered in several amounts, totaling $2,383.80. Defendant Harwood was not served with summons. The court found that defendant Estate of H. A. Conway, deceased, was not liable, and entered judgment against appellant Alline E. Conway.

It is alleged in each cause of action that all of the plaintiff's assignors assigned their respective interests in their claims to plaintiff. Appellant Conway, by answer, denied this fact. The court found that the claims had been thus assigned. But for two possible exceptions, respondent offers no proof of any such assignments. On appeal from the judgment, claiming insufficiency of the evidence to support it, appellant now argues that the burden of proof of the fact that respondent's assignors assigned their claims and complied with section 300 of the Labor Code in respect thereto, was upon plaintiff, and in the absence of evidence on the subject respondent may not recover, and that defendant is not estopped to question the sufficiency of such proof on appeal.

There would be merit to this contention had it not been for the actions and conduct of counsel for the appellant in the opening statement to the court, leading counsel for respondent and the court to believe the only issue before the trial court to determine was the issue of appellant's liability. Martin v. Going, 57 Cal.App. 631, 207 P. 935. The record shows that the court inquired of counsel as follows:

‘The Court: And this is an action on assigned claims for wages?

‘Mr. Donahue: Particularly labor, Your Honor.

‘The Court: And the defense is they were not contracted by this defendant. Is that correct?

‘Mr. Wallace: That is correct, Your Honor.

‘Mr. Donahue: In talking with counsel for this defendant, Your Honor, he believes we can confine the issues in this case to the question of the liability of this named defendant. * * *

‘The Court: I presume that would be his endeavor, at least.

‘Mr. Donahue: Confine it to that rather than first have to establish the accounts. * * *

‘The Court: You mean, Mr. Wallace, that you are not prepared to contest the correctness of the items, but only the liability? * * *

‘Mr. Wallace: * * * If there is no liability, the question of the accounts will not become material. * * *

‘The Court: Well, let's go ahead with the issue, then.’

During the course of the trial, the question was propounded by counsel for respondent regarding the assignment of one of the claims:

‘Q. (By Mr. Donahue): Now, you have assigned your claim against Alline E. Conway to M. H. Anglin. Did you not? A. Yes, sir.

‘Mr. Wallace: I object to that. It calls for a conclusion of the witness. I will stipulate the purpose is he assigned his claim against * * *

‘The Court: In other words, it is his conclusion as to the effect of this legal document?

‘Mr. Wallace: He signed the document.

‘Mr. Donahue: Well, it is just to identify this man as one of the parties in this action.

‘Mr. Wallace: We are not going to quarrel with that.

‘Mr. Donahue: That is the only purpose of the question.

‘The Court: All right, let it stand.’

While a close question is presented in respect to the question of waiver and the right of appellant now to raise the question for the first time on appeal, we prefer to determine the question of the sufficiency of the evidence to support the finding pertaining to the liability of the appellant on any of the alleged assigned claims.

The facts indicate that defendant Harwood negotiated with a Mr. and Mrs. Bolling to drill an oil well on property leased by the Bollings. These negotiations resulted in the execution of a written drilling agreement between the Bollings and H. A. Conway, dated August 22, 1949. By its terms, among other things, Mr. Conway agreed to furnish all supplies and all things necessary in the drilling of the well. The agreement was signed by H. A. Conway and acknowledged in Colorado on September 3, 1949, and the Bollings acknowledged it on August 22. It was recorded on September 15, in Kern County. Appellant's name was not mentioned therein in any manner.

Defendant Harwood proceeded with the matter and apparently moved equipment onto the property, employed one Rivers as superintendent, who, in turn, employed the workmen here involved under him. The log of the well, kept by Rivers and some of these workmen shows the ‘rigging up’ was commenced on August 29, on ‘Well No. 1 * * * Quinn lease * * * name, H. A. Conway, 722 Crescent Drive, Beverly Hills, Cal.’ There was no change in the name H. A. Conway to that of appellant or any other person up to September 22, when the work ceased. The well was drilled to a depth of 2235 feet, and about September 15th a dry hole resulted and the claims here involved were unpaid. All of the pay-roll record and tax statements, signed during this period by the respective workmen, gave their employer's name as H. A. Conway, at his address in Beverly Hills. No other name appears thereon as employer, and no change in this respect is indicated. A notice of nonresponsibility was posted and recorded by the Bollings on August 30, which recites that notice is given that the Bollings have entered into a contract with H. A. Conway for the purpose of drilling a well on the premises described, and that George Harwood is associated with H. A. Conway in the performance of the contract.

So far as the record is concerned, there is no evidence that H. W. Conway visited the property or knew anything about the transaction other than signing the contract. He was in Colorado during this period. About September 12, he was ill and returned to Los Angeles. He died on November 15. The only evidence supporting the court's finding attaching liability to appellant Mrs. Conway may be thus summarized:

It appears from appellant's testimony that on Sunday, September 4, Harwood phoned appellant's son in Los Angeles and asked if he wanted to see an oil well come in; that he replied that he would and that appellant and her two sons went to Delano; that they did not know where the well was located but through inquiry found it; that they there met Harwood, Bolling and Rivers; that they watched for some time but the well did not come in; that appellant and one son remained overnight; that Harwood wanted to pay the workmen and asked her to write checks on her bank account in Los Angeles; that he stated he would give her the money to cover them; that she changed the bank checks obtained at Delano and issued checks to the workmen; that she returned home the following day, and on the following Monday deposited the $1,000 given her by Harwood, in her bank account. Her account, maintained under the name of H. A. or Mrs. H. A. Conway, showed a deposit of $1,500 on that date. The checks were paid when presented.

Rivers testified generally that when he was originally employed Harwood agreed to pay him $700 per month; that Harwood wrote the name H. A. Conway on the log book; that drilling work was commenced about August 28th; that appellant, on the third or fourth day thereafter, came out to the well; that Harwood introduced her to him as the ‘boss'; that appellant evidently didn't know anything about the well; that she came back another time (about two days later) and he told her the workmen had to have some money and she wrote out checks for them; that she came to the well about four times in all; that on her fourth trip she mentioned that her husband was in Colorado; that he (Rivers) told her they were worried about money for the men and for casing; that she said: ‘In just a few days we will have money and we will have casing, and we will complete the well’; that Harwood ‘verified’ her statement; that thereafter he called her at her home in Los Angeles (almost daily) about paying the men; that after the drilling was shut down she told him she was endeavoring to have someone take over the well and put up money to clear the debts; that she gave him a check to repair the pump; that thereafter he and appellant and some others went to the district attorney's office in Bakersfield about labor checks Harwood had given which were not paid; that appellant told the district attorney that Harwood agreed to furnish the rigging and her only obligation was to pay the labor; that she gave Harwood about $1,200 for that purpose but he failed to deposit it; that she said to Rivers: ‘I will see that you get yours'; that Harwood originally told him that he and Mr. Conway were going to dill all the wells; that Mr. Bolling was present; that about October 24th he (Rivers) and the laborers went to see the Labor Commissioner. H. A. Conway was named by some of the laborers in their claims as the one owing them. Apparently, no action was taken by the Labor Commissioner against appellant.

Rivers' wife testified that she saw appellant at the well on two or three occasions; that on one visit appellant said that ‘the well had better come in or it would be murder for her * * * because * * * it is my allowance I am using’; that she wanted to replace the money back to that account. Other workmen stated originally they were told that Mr. Conway and Harwood were drilling a well and they were to work for them; that later appellant was at the well and that she was introduced to them by Harwood as the ‘boss'; that they all read the notice of nonresponsibility posted on the property; that they visited appellant in Los Angeles about their claims; that they knew Mr. Conway was in Colorado and was ill; that while at appellant's home a phone call was made to him and Mrs. Conway said that she was ‘responsible only for the labor * * * I will see you get payed’; that they went to the Labor Commissioner about their claims but never asked that he collect those claims from appellant.

Appellant, in addition to what has been heretofore stated, testified generally that she and her husband were introduced to Harwood when he and her husband leased certain property in Newhall; that the first she knew of the drilling of this well was at the time of her first visit to the property when Harwood called her son and when she issued the checks for Harwood; that that was the first time she ever saw Rivers; that she did not know at that time that Mr. Conway had any interest in that well; that she, personally, had no interest in it, financially or otherwise; that she did not learn that Mr. Conway had any interest in it until ‘the thing all blew up’; that she never visited the well again until it was shut down; that she visited with Mrs. Rivers but she denies ever making the remarks attributed to her by Mrs. Rivers. She denied any conversation with the employees about wages at the well or that she was ever introduced to them as the ‘boss'. She denied making any statement to them at the Labor Commissioner's office that she was to pay for the labor, denied such a conversation with them at her home, and stated that their visit was on the day of the night when her husband died at the hospital in Los Angeles; that she did tell them Harwood had a man interested in taking over the well any paying the laborers ‘because they should have been paid’; that none of the laborers here involved asked her to pay their claims, and she never told them she would. She testified she filed a separate income tax return from that of her husband and that she never claimed any loss on account of the drilling of the valueless well.

Upon the filing of the action by respondent, appellant demanded and received a bill of particulars, which sets forth the various claims. Each recites that the individual claimant was hired by W. H. Rvers, superintendent for H. A. Conway Oil Company. The evidence indicates that there never was such a company formed.

Upon this evidence the court found generally that the claimants were employed by appellant; that she paid a certain amount thereon by her personal check and that the total amount of $2,076.88 remained due and unpaid; that the allegations contained in appellant's answer were untrue; that there was no evidence introduced that indicated H. A. Conway or his estate were in any way liable. Judgment was entered against appellant.

On appeal the first argument is that the evidence does not show that respondent's assignors were employed by appellant. They concede that their initial employment was by Rivers and that Harwood arranged for this. There is no evidence showing that appellant was, at that time, their employer nor was it so indicated in the signed agreement between the Bollings and H. A. Conway. Rivers testified he was employed by Harwood. Unless the evidence is sufficient to show a joint enterprise or partnership venture between Harwood and appellant or between appellant and her husband, there is no substantial evidence connecting appellant with the initial employment of Rivers or those employed by him. If respondent did so contend at the trial he, has abandoned such contention on appeal. In his brief he recites that ‘The facts clearly indicate that this was not a partnership venture, neither was it a joint venture. It was a venture instituted by appellant through her friend George Harwood in anticipation of profit and in anticipation of pleasing or financially helping Dr. H. A. Conway. * * * Here the appellant was engaged in a venture to obtain oil, and the normal rules applicable to normal business operations cannot nor will apply. She, in plain language, was gambling.’ Just what proposition of law or fact is presented by this statement is not clearly understandable to us. If respondent relies upon employer-employee relationship, the evidence falls far short of proof that the appellant, as the employer, had the right to control or end the services of the employees whenever she saw fit to do so. This was a necessary element. Press Publishing Co. v. Industrial Accident Commission, 190 Cal. 114, 120, 210 P. 820; Ellison v. Dallugge, 139 Cal.App. 366, 33 P.2d 878. Here, appellant did not employ the men (which the claimants well knew), did not fix their wages, and it clearly appears that she assumed no authority nor control over them in directing their activities and did not ultimately discharge them. They refused to do further work unless they were paid by some one, which action on their part was no unusual. Under the theory of employer-employee relationship these were necessary elements. Anderson v. Badger, 84 Cal.App.2d 736, 741, 191 P.2d 768.

Although respondent does not indicate in his brief the theory upon which the judgment might be supported, the only remaining point would be the argument by appellant's conduct and actions in paying the labor claims that were accumulated at the time of her visit to the well, by her introduction to the workmen as the ‘boss', and the statements charged to her as having been made, she assumed all further liability thereafter and agreed to pay the workmen herself for any future services they might perform in drilling the well. Although appellant denied any such conversation, accepting them as true, we do not believe the evidence would support any such finding, if made. If we may assume that these claims were for wages earned before she made any agreement to pay them (if her conversation amounted to that) such agreement was invalid as being in violation of section 1973, subdivision 2, of the Code of Civil Procedure, in that any valid promise made by her to pay the debts of another would have to be in writing. Swim v. Juhl, 72 Cal.App. 363, 237 P. 552.

We conclude that the evidence is not sufficient to show that appellant accepted the liability to pay the claims contracted after her visit to the well or that she became substituted as claimants' employer by the statements and acts attributed to her.

The general principles of law here applicable are set forth in McClenahan v. Keyes, 188 Cal. 574, 206 P. 454. In that case plaintiff, a physician, recovered a judgment in the trial court against the mother of an adult daughter for services rendered in connection with the illness of the daughter. The question was whether or not the mother entered into a contract of employment with the plaintiff. The charges were for services rendered by the doctor to the daughter, both before and after the mother acquired knowledge of the serious condition of her daughter. The physician, during the period of his employment, continued to make charges upon his books against the daughter, and subsequently brought suit for the full amount against her. He failed to recover against the daughter except for the services rendered when the daughter was unconscious. He thereafter filed his claim against the estate of the mother and brought an action thereon. As to her liability, plaintiff depended upon certain statements of the mother made to plaintiff, and upon certain transactions had with others. It appears there that the mother made a statement that the plaintiff would be adequately compensated for his services rendered and requested him to render further service. The daughter was a wealthy woman and able to pay for the services rendered to her. The Supreme Court held that the mother was not liable for such services in the absence of a contract on her part to pay therefor, and that the evidence produced was insufficient to establish either an express or an implied contract to do so. The court said if it had been the intention either of the plaintiff or the mother that she should become personally responsible for the payment of such services it would have been very simple for him to have secured from her a direct statement to that effect. The fact that the respondent carried the account on his books in the name of the daughter and subsequently brought suit against her to recover the full amount claimed for all services rendered would clearly seem to indicate that he did not enter into an agreement with the mother that he would accept her as a primary debtor, and there was nothing said by the mother, as testified to by him, which would indicate that the mother intended to assume that obligation in the place and stead of her daughter. On the contrary, it would seem that the mother studiously avoided stating that she would be personally responsible for the plaintiff's services; that if, however, it be assumed that the mother in fact promised to pay for the plaintiff's services, another consideration would lead to the conclusion that there was no liability on the part of the mother for these services rendered to the daughter. Plaintiff was already performing services for the daughter, presumably under a contract for that purpose. The law is clear that if any credit was in fact given to the daughter the mother could not be held as the original promisor, but at most a mere guarantor; that in such a case, in order that the promise of the mother to answer for the antecedent obligation of the daughter should be considered an original obligation and therefore not required to be in writing, the statute provides that the promise is deemed original only when made upon a consideration beneficial to the promisor, whether moving from either party to the antecedent obligation or from another person. There was nothing in the arrangement between the plaintiff and the mother to indicate that liability for the continued services of the plaintiff was to be assumed by the mother as a condition for the continued performance of services by the plaintiff in connection with her daughter.

In the instant action no consideration beneficial to the promisor thus appears. An examination of all the written documents creating the original obligation shows that they do not mention appellant and by no construction of any of the terms thereof can it be said that appellant would be entitled to any interest in the oil well had it come in or been a success, or that she would have been individually benefitted in any manner by accepting the obligation to pay the workmen after her visit to the well. Any claim of appellant's liability under this theory is therefore not tenable. Another fact to be noted is that respondent failed to call as his witness Mr. Bolling, who apparently was a party to the contract and engineer on the job.

Lastly, appellant takes exception to a statement in respondent's brief to the effect that the judgment herein, by reason of execution, was satisfied on June 4, 1952, because no stay bond on appeal was given. We are not, as yet, concerned with this problem and therefore must disregard the statement.

Judgment reversed.

GRIFFIN, Justice.

BARNARD, P. J., and MUSSELL, J., concur.