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

Andrew V. McDONALD, Plaintiff and Appellant, v. SHELL OIL COMPANY, Incorporated, a corporation, Charles E. Neuhaus et al., Defendants and Respondents.

Civ. 20315.

Decided: November 10, 1954

James C. Hollingsworth, Edward Henderson, Ventura, for appellant. Bauder, Gilbert, Thompson, Kelly & Veatch, Los Angeles, Churchill & Teague, Ventura, for respondents.

Appellant-plaintiff has appealed from a judgment of nonsuit granted at his third trial, the two previous trials having resulted in jury verdicts for appellant followed by the granting of motions for new trial.

Appellant was employed as a lead-tong man by Len Owens, an independent contractor engaged by respondent Shell Oil Company to recover certain casing and to abandon an oil well known as Taylor No. 6 on the Shell Oil lease near Ventura. Appellant, Fortney as cathead man, and Alberts as backup man, were manipulating the casing as it came from the well. The well-pulling rig was mounted on a truck, and the equipment consisted of a stationary spider, with hydraulic jacks on each side and the pipe being removed was held in place by slips. The cathead was a revolving spool and the catline was a piece of manila rope about an inch and a half thick, with a hook on one end and with the other end wrapped around the cathead; the cathead and catline were used to pick up equipment and joints of pipe and lay them down around the rig. The traveling spider had on it slips, which were put in place to hold the casing when pulling it after a spear had been put down the drill pipe. The procedure for elevating the pipe was to lower the hydraulic jacks to the bottom, place the slips in the traveling spider and as the jacks were raised the pipe would travel about six feet at a time. Underneath the spiders was a cellar which gave room for putting on tongs and performing other work.

Just prior to the accident here involved, appellant and Alberts were fitting the slips into the spider in order to catch the pipe and elevate it. They had been working in the cellar and in order to work more effectively the driller, Hames, told them to come out of the cellar and to ride up on the spider and set the slips. They rode up on the spider, with Alberts on one side and appellant on the other side of the hydraulic jacks to a point about five or six feet above the floor of the rig.

At this time, the catline was attached to the elevators and holding them suspended, and the other end of the catline was wrapped four or five times around the cathead, which was revolving. There was no safety grip or lock, sometimes called a catline clamp, on this rig. Such a grip or clamp is used when it is desired to stop the lowering or raising operation, and leave a weight on the catline; the clamp will hold the catline in place, rather than to require the revolving cathead to hold the weight. With the cathead revolving and without a clamp, the catline is likely to heat and burn as a result of the friction, and the object attached to the catline will necessarily fall. That is what happened in this instance. The steel elevators, weighing approximately 1,200 pounds, were suspended about 24 to 30 feet in the air at the top of the drill pipe. The cathead was revolving, the catline burned in two, and the elevators fell down on plaintiff's left arm as it was around the pipe above the spider. Subsequent inspection revealed the cathead was worn and grooved, a factor that apparently created more than normal friction.

Immediately after the accident, plaintiff was taken to the hospital, where it was ascertained that he had a very severe mangling laceration and crushing injury of his left forearm. His arm was in such condition that amputation became necessary.

From the foregoing, it is the contention of appellant that Shell and its agent Charles E. Neuhaus had and exercised control over the abandonment operations of Owens and knew, or should have known, of the absence of a safety grip or catline clamp, and the grooved condition of the cathead. On the other hand, respondents insist they did not actively interfere with or direct the operations, nor furnish or agree to furnish the equipment, that they had no duty of providing safe equipment to appellant who was an employee of an independent contractor, and that the sole proximate cause of appellant's injuries was the negligence of Owens and Owens' employees.

Nonsuits should be granted sparingly. A motion for nonsuit properly may be granted when and only when, disregarding evidence that conflicts with that of plaintiff, and giving to plaintiff's evidence all the value to which it is legally entitled, indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of plaintiff. Palmquist v. Mercer, 43 Cal.2d 92, 272 P.2d 26; Zar v. Alafetich, 126 Cal.App.2d 643, 272 P.2d 922; Turner v. Ralph M. Parsons Co., 117 Cal.App.2d 109, 254 P.2d 970; Blumberg v. M. & T. Incorporated, 34 Cal.2d 226, 229, 209 P.2d 1; Raber v. Tumin, 36 Cal.2d 654, 226 P.2d 574.

There is no question that ordinarily no liability attaches to an owner for the acts of an independent contractor. Green v. Soule, 145 Cal. 96, 78 P. 337. It is difficult to prescribe any rigid rule defining the extent of intrusion or participation in the work by the owner that will destroy this insulation from responsibility. Generally speaking his duty is necessarily co-extensive with his power. Thus a general ability to control the work in order to insure that it is satisfactorily completed in accordance with the terms of the contract does not of itself make the hirer of the independent contractor liable for harm resulting from negligence in conducting the details of the work. An owner is not liable for injuries resulting from defective appliances unless he has supplied them, or has the privilege of selecting them or the materials out of which they are made, Hard v. Hollywood Turf Club, 112 Cal.App.2d 263, 276, 246 P.2d 716, or unless he exercises control over the men employed or the equipment used by the independent contractor. Willis v. San Bernardino L. & B. Co., 82 Cal.App. 751, 756, 256 P. 224. But if the hirer has the power to control the manner of performing the work, or the personnel on the job, or the equipment being used, then whether the control has been exercised with reasonable care becomes a question for the trier of fact.

In the instant case, there is sufficient evidence in the record to establish prima facie that Shell exercised control over Owens, his employees and his equipment. Respondent Neuhaus, general production foreman of Shell, testified that he was in charge of the abandonment and that he had the equipment under his observation. Shell had a working production foreman on the job at all times; the Shell foreman and Owens received the same work sheets; Shell had the authority under its contract to stop Owens if it considered the work unsatisfactory in any respect. After the accident, Shell conducted an investigation and its committee submitted a written report. The report, admitted in evidence only for its bearing on the issue of control by Shell of Owens' activities, stated among other things that Shell recommended use of a catline clamp to replace riding the rope on the cathead, and that this was immediately installed. Paragraph 6 of the contract between Shell and Owens provided: ‘Without in any manner affecting contractor's duties and obligations hereunder, material and workmanship at all times shall be subject to the inspection of Shell's representative, who shall be the sole judge and final authority concerning materials furnished and work done hereunder.’ Appellant testified to his personal observation of a specific instance of authority exercised by Shell over an employee of Owens on the job.

Under the foregoing circumstances, there was sufficient evidence to submit the case to the jury, and the court erroneously granted the motion for nonsuit. Hargrave v. Acme Tool & Tester Co., 125 Cal.App.2d 34, 269 P.2d 913.

There is no merit to respondents' contention that appellant's receipt of a compensation award through the Industrial Accident Commission constitutes a bar to this action. Popejoy v. Hannon, 37 Cal.2d 159, 231 P.2d 484, upon which they rely, concerned a cause of action based upon the doctrine of respondeat superior. That is not involved here, nor is this a situation of vicarious or imputed liability. No authority in that or in any other case has been called to our attention holding an industrial award would deprive an injured employee of his cause of action against a third party for negligence.

The judgment is reversed.

MOSK, Justice pro tem.

WHITE, P. J., and DRAPEAU, J., concur.