MANTONYA v. BRATLIE (1948)

This is an appeal from a judgment awarding plaintiff $18,000 general damages, and $951.85 special damages for serious injuries received when a caterpillar tractor he was operating fell over a bank and rolled over onto him. It is not argued that the damages are excessive.

Defendants are husband and wife and were when they acquired, as joint tenants, the Mar-Jac Rancho by a deed dated December 11, 1944. They evidently went into possession of the property before Christmas of that year and started their farming operations.

Under date of January 1, 1945, plaintiff and J. L. Bratlie entered into a written contract which provided in part as follows:

‘It is understood and agreed that Alferd W. Mantonya is to work on the Mary-Jac Rancho for a period of one year, beginning this date, Jan. 1st, 1945. That he is to devote his entire time to harvesting crops and marketing same, to till the soil and do whatever possible to prepare more land for cultivation, to keep all equipment in repair and in good condition, including buildings, fences and roads.

‘For and in consideration of which, J. L. Bratlie agrees to pay Alferd W. Mantonya the sum of one hundred and seventy five dollars a month (175.00) and to furnish him living quarters with light, heat, electric power, hot and cold water and cooler.

‘It is further agreed and understood that Alferd W. Mantonya shall receive 10% of net profits of the Mar-Jac Rancho.’

Plaintiff worked on defendants' ranch for a few days in December, 1944. He immediately started performing under his contract and was injured on May 27, 1945. The evidence on many phases of the case is sharply conflicting. As the jury accepted the evidence offered by plaintiff as true, and as the trial judge agreed with the jury when denying the motion for new trial, we will concern ourselves principally with outlining the evidence supporting the judgment and need give but little attention to the conflicting evidence offered by defendants.

One of the implements furnished plaintiff with which to work was a caterpillar tractor which was in very poor repair. Mr. Bratlie had a master clutch installed but declined to have any further work done on it. After the repairs were completed the clutch operated fairly for about three weeks after which it gave trouble again. Sometimes it was hard to get the machine in or out of gear and at other times it would not stay in gear. At times the gearshift lever would hang up or lock so that the driver could not stop when he wanted to. The tracks and a roller were badly worn and the tracks would jump, pop and snap when a turn was being made, especially to the left. The machine would make a sharp turn to the right but would require a radius of not less than ten feet and sometimes more to turn to the left and even then it was difficult to make a left turn. Mr. Bratlie knew of these defects because he had driven the tractor numerous times. In trying to make left turns he knocked down several irrigating standpipes and on another occasion tore out about 20 feet of fencing. Plaintiff complained to him of the condition of the tractor but Mr. Bratlie's reply was: ‘I don't want to spend any more money on the old thing.’

After the accident Harry Maurer, who had installed the new master clutch, did some further work on the tractor. He testified concerning the condition of a roller as follows:

‘A. After we got it up on the bank, off the first ledge, we could not move it because the track frame was bent. I loosened the track, took the idler out, and found a bad roller in there.

‘Q. Which side was that on? A. That was on the left-hand side.

‘Q. What condition was this roller in that you took out? A. It was worn out, worn in two, you might say.

‘Q. Was the condition of that roller something that could have been caused by this accident? A. No. That roller was worn out.

‘Q. That roller was worn out? A. Yes, sir.’

This witness further testified that a roller in that condition might possibly cause the track to lock.

Mr. and Mrs. Bratlie returned to their home in the State of Washington about the 12th of May, 1945, leaving plaintiff in complete charge of the ranch.

The cement irrigating pipes and stand pipes on the ranch needed repair and plaintiff had suggested to Mr. Bratlie that sand for the repairs could be obtained from the bottom of a wash a short distance from the rach which would save trips into a neighboring town for sand. Mr. Bratlie thought this might be a good idea.

Shortly before noon on May 27, 1945, plaintiff, accompanied by his brother-in-law, attempted to drive the tractor into the wash to obtain sand. The road down into the wash, if it could be called a road, was steep. Plaintiff drove the tractor to the wash and made a right turn onto a steep descent about 25 or 30 feet long and onto a bench where he was required to make a left turn to follow the bench to the bottom of the wash. He made the right turn and the descent successfully, but could neither make the left turn nor stop the tractor which ran onto the edge of the bench and toppled over the caving edge down a drop of 12 or 14 feet. The brother-in-law successfully jumped onto the bench but plaintiff was not so fortunate. His jump was short and he fell into the bottom of the wash. The tractor landed on its radiator and toppled over onto plaintiff, the exhaust pipe seriously burning his legs. One of his legs was so badly crushed that it had to be amputated below the knee.

At the commencement of the trial defendants moved to dismiss the action on the ground that the complaint failed to state a cause of action against defendants, which motion was denied. The motion was renewed several times during the trial and each time was denied. These rulings are now urged as error under the authority of McLain v. Llewellyn Iron Works, 56 Cal.App. 60, 204 P. 869. A casual reading of that case shows that it cannot be controlling here. It there appears that the minor son of plaintiff was an employee of the defendant corporation and was killed when an electric crane fell upon him. Subdivision b of section 12 of the then Workmen's Compensation Act, Stats.1913, p. 283, as amended, Stats.1915, pp. 1079, 1081, as in effect at the time of the death of the son of Mrs. McLain, permitted actions at law by an injured employee against his employer, in certain cases, for the employer's gross negligence or wilful misconduct. The judgment in favor of the plaintiff mother was reversed because this section provided only for an action at law by the employee and did not give such right of action to the deceased employee's mother. We have no such situation here. The Workmen's Compensation Act has been variously amended since the decision in the McLain case. See Rideaux v. Torgrimson, 12 Cal.2d 633, 86 P.2d 826.

No demurrer was filed to the complaint in the instant action. Had one been filed it probably would have been sustained with leave to amend. Clearly, this case falls within the language and reasoning and the rule announced in Lewis v. Curran, 17 Cal.App.2d 689, 62 P.2d 800, 801, where, in considering the sufficiency of a complaint, it was said:

‘An examination of the transcript reveals that the theory upon which the action was tried brought home to the appellant full knowledge of every phase of the case upon which the plaintiff relied. * * * The paragraph which we have quoted may not be technically as full and complete as it might have been made, but it does exhibit the fact that the action was based upon the defective condition of the tractor which was allowed to remain and be operated in that condition by the negligence of the defendant in not having necessary repairs made thereto. The record shows fully that the action was tried upon the theory that the tractor was defective, and on the part of the appellant it was urged that, notwithstanding the alleged defective condition of the tractor, the injury to the plaintiff was caused by his independent, negligent act in attempting to disengage the clutch * * * It is evident from the record and the testimony introduced that the defendant was not misled in any particular by reason of any defective pleading in this action. Under such circumstances, section 4 1/2 of Article 6 of the Constitution comes to the assistance of the plaintiff in specifying that no judgment shall be reversed, etc., for any error as to any matter of pleading, unless the court shall be of the opinion that the error complained of has resulted in a miscarriage of justice.’

Defendants also urge that the action should have been dismissed as to Mrs. Bratlie because plaintiff was employed under a written contract between him and Mrs. Bratlie, co-signers'; that these funds cy, Mrs. Bratlie was not an employer of plaintiff and was not liable for his injuries.

Defendants were husband and wife and had been married about 35 years when they acquired the Mar-Jac Rancho as joint tenants. Mrs. Bratlie testified that she was living on the ranch when plaintiff was employed and remained thereon during the continuance of his employment until about May 12, 1945; that Mr. Bratlie took care of all matters in which they were interested; that she left all business to him to care for. Mr. Bratlie also testified that proceeds from the sale of crops from the ranch were deposited in a bank account under the name of ‘Mar-Jac Rancho, Mr. J. L. Bratlie and Mrs. Bratlie, co-signers'; that these funds were used for the maintenance of the ranch. Thus Mrs. Bratlie received the benefit of plaintiff's labor and his salary was in part paid by her. This is sufficient to show the relation of employer and employee (see secs. 3300, 3351, Labor Code) and supports the inference of agency of Mr. Bratlie in executing the contract of employment. See, Cowell v. Industrial Acc. Com., 11 Cal.2d 172, 78, P.2d 1016; Rauer's Law & Collection Agency v. Berthiaume, 21 Cal.App. 670, 132 P. 596, 833.

Defendants complain of many of the instructions given by the court. They were not made a part of the record originally filed but this has been corrected by its amplification on stipulation.

Many arguments of defendants concerning instructions center around the question of whether or not defendants were required by law to carry Workmen's Compensation insurance on plaintiff who was an agricultural worker, it being admitted they had no such insurance. The conclusion reached on this question will make unnecessary the detailed consideration of numerous instructions which defendants attack as erroneous as well as their further argument that the complaint fails to state facts sufficient to constitute a cause of action against either of them.

Very generally speaking, section 4250 of the Labor Code provides, among other things, that under certain conditions not material here, the employer and employee are conclusively presumed to have accepted the provisions of the Labor Code relating to Workmen's Compensation with the exception noted that ‘this sections shall not apply to any person, or to those employed by him, whose payroll for the preceding calendar year has not exceeded $500.’ This presents the question of whether or not defendants' payroll for 1944 exceeded $500 as well as what constituted the ‘payroll.’

The trial judge instructed the jury that ‘payroll’ is defined as ‘A row (roll) or list of persons entitled to payment with the amounts due.’

While this definition, with the correction of the typographical error of ‘row’ to ‘roll’ is an exact and correct copy of Mr. Webster's definition of the term, we think it too restrictive a definition of ‘payroll’ as used in the Labor Code. If this were not true, the farmer, whose only record of wages paid were the checks given laborers, could not be said to have any payroll if the names of the laborers and the amounts due and paid to them were not entered on some record.

In MacGruer v. Fidelity & Casualty Co., 89 Cal.App. 227, 264 P. 501, 502, the term was defined as follows: ‘The term ‘payroll’ in the usual and ordinary acceptation means a fund or sum of money on hand in cash, to be disbursed in payment of wages at a designated place and time.'

In Beisigl v. Industrial Accident Commission, 9 Cal.App.2d 739, 51 P.2d 153, it was held that payroll, as used in the Labor Code, referred to money paid laborers for services rendered in operating the farm, whether the work was occasional or continuous, and included many operations of permanent benefit to the farm such as leveling ground. See also, Globe Indemnity Co. v. Industrial Accident Commission, 45 Cal.App. 328, 187 P. 452.

We therefore conclude that the term ‘payroll’ as used in the statute refers to wages earned by farm laborers performing farm labor for their employer during the calendar year preceding the date of an injury. See, Earl Ranch, Limited v. Industrial Accident Commission, 4 Cal.2d 767, 53 P.2d 154. This is in accordance with the generally understood and widely accepted definition of the term as used in the Labor Code and in other connections.

Defendants complain of the instruction given defining ‘payroll’. We agree with them that this definition is too narrow and should not have been given but we can see no great resulting prejudice because of the commonly and widely understood definition we have already given. The jury could not have been misled by this instruction.

We must now turn to the question of the evidence as to the amount of defendants' payroll for farm labor during the calendar year of 1944, which in this case is confined to the month of December as there is no showing of any payroll for such labor prior to that month.

Plaintiff introduced evidence showing payments by defendants in December, 1944, of $300 to Leo Boelter, of $15 to plaintiff, and of $4.50 to Fred Lewis, a total of $319.50. These payments were made for farm labor. He also introduced evidence of a payment of $759 to Jones Brothers for leveling land during the same month, making a total of $1078.50 paid during December, 1944.

Defendants called Clyde Jones as a witness in their behalf. He testified that he was a member of the partnership of Jones Brothers which did the leveling for defendants in December, 1944; that the charge was $765. for the work but was reduced by $6 to compensate defendants for a stand pipe which was broken by the operator; that the equipment used in the leveling operation consisted of one RD–7 Caterpillar tractor, a BG drag, a scraper and pump; that it was operated by one man; that the $765 charged included the wages paid to the operator and the cost of the use of the equipment.

An objection by plaintiff was sustained to the question: ‘What was the total amount, the portion of this $759.00 that was applied by you towards the payment of the employee for the work in operating that equipment?’ This ruling is now urged as error on the ground that while the ‘payroll’ of defendants might include the wages paid to the operator of the leveling equipment, it could not include the value of the use of the equipment.

Jones Brothers were seemingly independent contractors hired by defendants to do the leveling. They paid their operator out of the money paid them by defendants. While the employee was working defendants' farm for independent contractors who paid his wages to him directly, still his wages were indirectly paid by defendants so that those wages should be included in the total amount of defendants' payroll. See, Lowe v. North Dakota Workmen's Compensation Bureau, 66 N.D. 246, 264 N.W. 837, 107 A.L.R. 973, and cases cited in note. While this is true, still we find no authority for including in the amount of the payroll the value of the machinery used in the leveling operations as ‘payroll’ is the amount of money earned as wages for labor performed. Beisigl v. Industrial Accident Commission, supra.

We conclude, therefore, that the trial court should have permitted defendants to prove the amount of money paid to the operator of the leveling equipment as distinguished from the amount paid for the use of the equipment. While the rulings on this matter were clearly error it does not necessarily follow that the error was prejudicial and would afford grounds for a reversal of the judgment.

It has been repeatedly held that prejudice from error cannot be presumed, but must be made to appear from the record. Counsel for defendants made no proffer of proof of what he expected to prove from the evidence of this witness and the trial judge and we are left in total ignorance of how much defendants hoped to establish was paid to the operator of the leveling equipment. As said in Re Claire, 9 Cal.App.2d 749, 50 P.2d 1070, 1072: ‘We are of the opinion that the trial judge unduly limited this cross-examination. Counsel for contestant made no proffer of proof and did not inform the trial judge, and has not informed us, what he expected to prove by this witness. We cannot presume prejudice in an error of this kind.’ In Re Bewick, 49 Cal.App.2d 287, 121 P.2d 815, 818, is to the same effect where it is said: ‘There is nothing in the record to show prejudice in the challenged ruling of the trial court. That ruling, assuming it was erroneous, can furnish no ground for a reversal of the judgment because prejudice must be shown and cannot be assumed.’ See also, Marshall v. Hancock, 80 Cal. 82, 22 P. 61. Since no offer to prove the contrary was made, we might be able to assume in support of the judgment that the amount paid to the operator was at least $181. There is nothing to the contrary in the record. In the absence of a showing of prejudice we are precluded from reversing the judgment for this error by the provisions of section 4 1/2 of Article VI of the Constitution.

Defendants urge error in the giving and the refusal to give numerous instructions. We have already considered one, and numerous others may be considered together.

Section 3706 of the Labor Code provides in effect that if an employer fails to secure the payment of compensation the injured employee may proceed either by a petition before the Industrial Accident Commission, or may bring an action for damages against his employer, or both.

Section 2801 of the Labor Code provides in part as follows:

‘The fact that such employee has been guilty of contributory negligence shall not bar a recovery therein where his contributory negligence was slight and that of the employer was gross, in comparison, but the damages may be diminished by the jury in proportion to the amount of negligence attributable to such employee.’

At the request of plaintiff the trial judge read this and the other pertinent sections of the Labor Code to the jury. He then gave several instructions on the measure of damages. These were in the form usually found in the ordinary accident cases and contained no mention of any reduction in the amount of the award because of contributory negligence, if any, of the plaintiff. This is now urged as error.

While the general instructions on the measure of damages, as a matter of precaution, well might have called attention to the provisions concerning the reduction of damages because of the contributory negligence of plaintiff, if any, the failure to do so cannot be regarded as reversible error. Instructions must be considered as a whole and all the law on a given subject need not and often cannot be incorporated in each instruction. The jury was properly instructed on the question of the reduction of damages because of contributory negligence and when taken as a whole the instructions fully covered the law involved in this case which is all that is required. Robinet v. Hawks, 200 Cal. 265, 252 P. 1045.

Defendants urge numerous other grounds for reversal of the judgment. We have considered all of them and find that none of them possesses sufficient merit to require detailed consideration.

Judgment affirmed.

MARKS, Justice.

BARNARD, P. J., and GRIFFIN, J., concur.