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

Bertha Merlos Uda DeCRUZ et al., Plaintiffs and Respondents, v. David Wallace REID et al., Defendants and Appellants.

Civ. 8624.

Decided: January 25, 1968

Murchison, Cumming, Baker & Velpmen, Howard C. Velpmen, and Henry F. Walker, Los Angeles, for defendants and appellants. Eckhardt & Kearney, Matthew M. Kearney, and Olen G. Miller, San Bernardino, for plaintiffs and respondents.

For Opinion on Hearing see 70 Cal.Rptr. 550, 444 P.2d 342.


This wrongful death action initiated by the widow and three minor children of a Mexican farm worker against third-party tortfeasors culminated in a jury verdict of $40,000 in favor of plaintiffs against defendants David Wallace Reid and Don Dale.   Judgment was entered on the verdict, defendants' motion for new trial was denied, and defendants promptly appealed from the judgment.

Following the accident which resulted in the demise of the employee, the heirs of the decedent filed a claim for death benefits with the Industrial Accident Commission (Workmen's Compensation Appeals Board).   The claim was settled prior to trial for the sum of $18,000, and the compromise and release agreement was approved by the Commission (Board).   The compromise specifically provided that the employer and the employer's insurance carrier waived any right of subrogation with respect to the suit against the third-party tortfeasors.   During the trial of the case under review, the trial court refused to permit evidence of the settlement.

In 1961 the decedent, Lucas Cruz Torres, emigrated to the United States from Mexico and was eventually employed by the owner of the Kitigawa Ranch as a “pusher” or ‘'straw boss.”   The ranch is comprised of two units designated as the “Home Ranch” and the “Zane Grey Ranch” which are situated approximately three-quarters of a mile apart.

In April 1964 Kitigawa placed an order for some fertilizer with a chemical company.   The chemical company engaged the defendant-Dale to haul the fertilizer, and the latter assigned his driver, the defendant-Reid, to make the delivery.   The equipment used on this particular hauling job consisted of a tractor, an intermediate semi-trailer having one set of dual wheels, and a rear trailer having four sets of dual wheels.   The rear trailer was connected to the semi-trailer by a tongue which was about 6–8 feet long and apparently there was a distance of 41/212 feet between the two trailers.

On April 9, 1964, the defendant-Reid and James Cuesta, a chemical company employee, left the chemical plant to deliver the fertilizer.   Cuesta was directed to show the defendant-Reid, driver of the tractor, where the deliveries were to be made.   At the time of departure the two trailers were fully loaded.   The first delivery was made to a nearby ranch where 2/323–3/434 of the fertilizer was unloaded from the semi-trailer.   The rear trailer remained fully loaded.   The defendant-Reid and Cuesta then proceeded to Kitigawa's Home Ranch.

When the two men arrived at the Home Ranch, Kitigawa's employees were having lunch.   The defendant-Reid was informed that one-half of the total load was to be left at the Home Ranch and the balance deposited at the Zane Grey Ranch.   The decedent was one of the Kitigawa crew members assigned by a ranch official to assist in the unloading operation.   After lunch the ranch owner's brother, Jack Kitigawa, told the defendant-Reid to leave the tractor and trailers at the Home Ranch and to accompany him in another vehicle so that he could show him the location of the Zane Grey Ranch where the balance of the fertilizer was to be delivered.   In driving into the entrance to the Zane Grey Ranch, Kitigawa showed the defendant-Reid a sandy spot in the road where trucks in past years had become stuck, and advised him to speed up his truck when he reached that point.   Thereafter, Kitigawa drove Reid back to the Home Ranch.   Upon their return, the crew was in the process of unloading.   Kitigawa informed the employees that when they had completed the unloading operation at the Home Ranch, they were to utilize a Kitigawa crew truck for the purpose of going to the Zane Grey Ranch to assist in the unloading of the remainder of the fertilizer.   The crew had removed approximately 2/323 of the fertilizer from the rear trailer so that after this operation was completed, both the semi-trailer and the rear trailer were only partially loaded with fertilizer for delivery to the Zane Grey Ranch.   When the unloading job had been completed at the Home Ranch, the entire crew, with the exception of the decedent, boarded the Kitigawa crew truck for the purpose of being transported to the Zane Grey Ranch.

The defendant-Reid and the chemical company employee, Cuesta, once again got in the Dale tractor with Reid driving.   While en route to the second ranch, a man wearing a white shirt, who was presumably the decedent, was seen riding on the front end of the rear trailer.   After arriving at the entrance to the Zane Grey Ranch, Reid accelerated the truck for the purpose of getting through the sandy area.   The circumstantial evidence reflects that decedent fell from the truck at this point and the inside duals of the left front of the rear trailer passed over his body.   The evidence is conflicting as to the exact speed of the truck at the time it turned into the ranch, but there was testimony to the effect that it was traveling 3–10 m.p.h. and that it accelerated to a speed of 7–15 m.p.h. in order to traverse the sandy area.

Evidence was also presented relative to the defendant-Dale's equipment:  the tractor was equipped with adjustable mirrors on each side;  each mirror was 16–18 inches high by 4–5 inches wide;  the cab of the tractor had an 8 x 16 window in the back;  the overall weight of the tractor and two trailers was 29,000 pounds;  approximately 10 inches to the rear of each door of the cab of the tractor was a handgrip, which grips were utilized for getting onto the back of the cab;  there were no safety rails or handholds of any nature along the back of the cab;  on the day of the accident, the fertilizer on the trailers was stacked approximately 2 feet high above the bed of the trailers;  considering the height of the load and the location of the driver, the driver of the truck could have seen someone sitting or standing on the bed of either trailer if he had looked to the rear or had used the adjustable mirrors;  inasmuch as both trailers were of the “flat-bed” type, obviously, there were no handles, grips or guard rails on either unit.

The issues to be determined are whether the trial court erred (1) in rejecting the defendants' offer to introduce the settlement in the sum of $18,000 between plaintiffs and the decedent's employers;  and (2) in its instructions to the jury.

Defendants first argue that the trial court erred in rejecting evidence of the compromise and release, thereby permitting a double recovery on the part of the plaintiffs.   This contention is meritorious.

When an employee's injury or death is compensable under the Workmen's Compensation Act, such compensation is the exclusive remedy against the employer.  (Lab.Code, § 3601.)   However, an action by the employee or his heirs against a third party whose negligence was the proximate cause of the harm is also statutorily permitted.  (Lab.Code, § 3852.)   Where circumstances justify this dual remedy by the employee, or his dependents, there are three procedural methods available to the employer who was obliged to pay compensation benefits so as to enable him to recover the amount so expended from the negligent third party.  “He may bring an action directly against the third party (Lab.Code, § 3852), join as a party plaintiff or intervene in an action brought by the employee (Lab.Code § 3853), or allow the employee to prosecute the action himself and subsequently apply for a first lien against the amount of the employee's judgment, less an allowance for litigation expenses and attorney's fees (Lab.Code, § 3856, subd. (b)).”  (Witt v. Jackson, 57 Cal.2d 57, 69, 17 Cal.Rptr. 369, 376, 366 P.2d 641, 648.)

 In an action brought by or on behalf of the employee, the third party tortfeasor may assert the concurrent negligence of the employer as a pro tanto defense and is entitled to have the judgment against him reduced by the amount of the compensation paid.  (Witt v. Jackson, supra, 57 Cal.2d 57, 72, 17 Cal.Rptr. 369, 366 P.2d 641;  Castro v. Fowler Equipment Co., 233 Cal.App.2d 416, 423, 43 Cal.Rptr. 589.)   Consequently, if the employer was concurrently negligent, the third party secures a credit for the workmen's compensation benefits paid by the employer.   If the employer was free of negligence, he or his insurer is entitled to recover the benefits paid the employee.  (City of Sacramento v. Superior Court, etc., 205 Cal.App.2d 398, 403, 23 Cal.Rptr. 43.)

 The question presented in the case under review is the legal significance to be attributed to the waiver by the employer and his insurer of their right of subrogation.   A waiver is defined as the intentional relinquishment of a known right.  (City of Ukiah v. Fones, 64 Cal.2d 104, 107, 48 Cal.Rptr. 865, 410 P.2d 369;  Henderson v. Drake, 42 Cal.2d 1, 5, 264 P.2d 921.)   Subrogation operates to transfer from one person to another a cause of action against a third party.  (Fifield Manor v. Finston, 54 Cal.2d 632, 640, 7 Cal.Rptr. 377, 354 P.2d 1073;  Block v. Cal. Physicians' Service, 244 Cal.App.2d 266, 271, 53 Cal.Rptr. 51.)   Plaintiffs contend that the doctrine of Witt v. Jackson, 57 Cal.2d 57, 71, 17 Cal.Rptr. 369, 366 P.2d 641, permitting a reduction of the judgment against the third party tortfeasor is limited to those cases where the employer's concurrent negligence is established, but does to apply where the employer refuses to assert his right of subrogation.   Plaintiffs further urge that since the compromise and release herein contained a waiver of subrogation rights, the defendants would not be entitled to a set-off even if the employer had been concurrently negligent.   However, such a position cannot be sustained for it is clear that in no event would the employee, or his dependents, be entitled to a double recovery.  (Witt v. Jackson, supra, 57 Cal.2d p. 73, 17 Cal.Rptr. 369, 366 P.2d 641;  Smith v. Trapp, 249 Cal.App.2d 929, 939, 58 Cal.Rptr. 229;  Castro v. Fowler Equipment Co., supra, 233 Cal.App.2d 416, 420, 43 Cal.Rptr. 589;  City of Sacramento v. Superior Court, etc., supra, 205 Cal.App.2d 398, 403, 23 Cal.Rptr. 43.)   If the employer, or his insurer, had asserted a statutory claim and defendants had established the employer's concurrent negligence, neither the employer, nor his insurer, would have been entitled to recover, but the jury would have been required to deduct the proceeds derived from the settlement from the total damages sustained as a result of the employee's death.   Conversely, if a claim had been arrested in statutory form and the employer was determined to be free of concurrent negligence, the employer would have been entitled to recover the sum paid plaintiffs.   Thus, in neither event, would the plaintiffs have realized any sum in excess of $22,000.   We fully appreciate the primary policy factor which influenced the California Supreme Court in formulating the Witt rule was to preclude the employer from reaping benefits as a consequence of his own wrong.  (See Witt v. Jackson, supra, 57 Cal.2d 57, 17 Cal.Rptr. 369, 366 P.2d 641.)   However, in its decisional process, the high court also recognized that the employee should not secure a double recovery as a result of one injury.

 It necessarily follows that the waiver of subrogation rights embodied in the compromise and release must be viewed as inuring to the benefit of the third party tortfeasor rather than the employee, or is surviving dependents.   Consequently, the defendants were entitled to present evidence of the death benefits paid without proof of the employer's concurrent negligence.   To hold otherwise would be to permit a substantial right in the third party tortfeasor to be lost by a circumstance wholly beyond his control.  (City of Sacramento v. Superior Court, etc., supra, 205 Cal.App.2d 398, 403, 23 Cal.Rptr. 43.)   Evidence of the prior payment was admissible for the purpose of reducing pro tanto the amount of the total damages recoverable.  (Laurenzi v. Vranizan, 25 Cal.2d 806, 813, 155 P.2d 633;  Reeder v. Hoag, 158 Cal.App.2d 41, 43, 321 P.2d 793.)   Therefore, the trial court erred in refusing to admit the compromise and release, and the judgment must be modified by reducing the pro tanto as to the sum paid by the employer's insurer.

Defendants next contend that the trial court erred in giving two specific instructions.   The first challenged instruction provides:

“If you find that [the decedent] was upon the defendants' truck, immediately preceding his death, in connection with the work he was there to perform, you must find that the defendants' truck was a place of employment and that the defendants were an employer as those terms are elsewhere defined for you.”

This instruction was preceded by a series of instructions defining “place of employment” (Lab.Code, § 6302);  “employer” (Lab.Code § 6304);  “employee” (Lab.Code, § 6305);  “the duty of the employer to furnish a safe place of employment” (Lab.Code, § 6400);  and an instruction to the effect that whether or not the defendants were an “employer” as the term is used in the Labor Code presented a factual issue.

Under section 6304 of the Labor Code, the term “employer” includes “every person having direction, management, control, or custody of any * * * place of employment * * *.”  “Place of employment is carried on.  (Lab.Code, § 6302.)   The case authorities construing these sections make it clear that their meaning is not to be restricted by the traditional concept of an “employer” as a person who hires another to work for him.   Instead, these definitions are intended to enlarge the meaning of “employer” beyond its ordinary scope for the purpose of Division 5 of the Labor Code, which deals specifically with “Safety in Employment.”  (Gaw v. McKanna, 228 Cal.App.2d 348, 351, 39 Cal.Rptr. 428;  Johnson v. A. Schilling & Co., 170 Cal.App.2d 318, 322, 339 P.2d 139.)

 Thus, this division of the Labor Code has been applied where an employee of an independent contractor was injured by machinery operated by the defendant-owner of the premises (Maia v. Security Lumber & Concrete Co., 160 Cal.App.2d 16, 324 P.2d 657;  where an employee of one subcontractor was injured by another subcontractor through work authorized by defendant-general contractor (Gonzales v. Robert Hiller Const. Co., 179 Cal.App.2d 522, 3 Cal.Rptr. 832);  and where the employee of an independent contractor was injured on the defendant-owner's premises by a condition existing at the time the premises were turned over to the subcontractor.  (Johnson v. A. Schilling & Co., supra.)   Therefore, the trial court's rendition of the employment instructions was justified under the factual situation involved, and this conclusion has to have been challenged by the defendants.   They contend that the effect of the quoted instruction was to require the jury to find an employer-employee relationship between defendants and the decedent, if the jury found that the decedent was on the defendants' truck in connection with his work.   It is urged that the instruction was “formula” in nature and prejudicial to defendants in that it failed to include a proviso that the decedent must have been invited or authorized to be on the truck before the rights and duties of an employer-employee relationship could arise.

However, the foregoing instruction was followed by a supplemental instruction which, inter alia, states:

“When an owner of a vehicle expressly or impliedly invites a workman to enter upon the vehicle for the purpose of performing some service from which both parties expect to benefit, the owner, to the end of protecting the workman, is required to use reasonable care to provide him with a reasonably safe place in which to work and in seeing that such equipment and facilities as are under the owner's control, and which the workman is likely to use, are reasonably safe for such use in carrying out the purpose of his work.”

In view of the latter instruction, the trial judge correctly advised the jury as to the law relating to the duty owed to provide a workman with a safe place of employment.   Instructions are to be considered as whole, and if they harmonize and fairly and accurately state the law, a reversal will not be had merely because of verbal inaccuracies or because a separate instruction does not contain all of the elements which may be gained from the instructions as a whole.  (McShane v. Cleaver, 247 Cal.App.2d 260, 266, 55 Cal.Rptr. 427;  Westover v. City of Los Angeles, 20 Cal.2d 635, 637, 128 P.2d 350.)

 The remaining instruction subjected to attack reads verbatim as follows:


“(Q).  Flat-bed trucks—which are occasionally used for the transportation of employees shall not be put to such use unless the following conditions, when applicable, are complied with:

“(2) Flat-bed trucks shall be protected on sides and ends, and employees shall sit on the truck bed.

“Exception:  A limit of two employees may be permitted to ride on beds that apply to the above rule, providing they stand or sit immediately behind the cab holding onto suitable grabirons which are rigidly fastened to the truck.

“(5) Employees shall not be permitted or required to ride on side rails, top of cabs, running boards, on fenders, on the hood, or with their legs hanging over the ends or sides.

“Title 8—California Administrative Code Article 23, Transportation of Employees and Materials State of California, Department of Industrial Relations, General Industry Safety Orders.”

Following this instruction, the court gave a standard instruction (BAJI 149, rev.) to the effect that if a party violated the foregoing safety order, he was presumed to be negligent unless overcome by evidence that the conduct in question was excusable or justifiable.   Defendants admit that their truck was not equipped for transporting employees.   However, they urge that there was no evidence introduced that the truck bed “had occasionally” or was ever used for employee transportation purposes.   The jury obviously found that the decedent was an “employee” of the defendants within the meaning of the Labor Code.   Consequently, it necessarily follows therefrom that the jury also found that defendants' truck was used for the transportation of an employee, namely, the decedent.   Therefore, the instruction was proper in view of the facts involved.

The judgment is modified by reducing plaintiffs' award from $40,000 to $22,000, and the judgment is affirmed as modified.