McFARLAND v. Voorheis-Trindle Company, a corporation, Respondent.* (1959)

Action for damages for personal injuries. In a jury trial, plaintiff was awarded $75,000 damages. Judgment on the verdict was entered and in due time defendant made a motion for judgment notwithstanding the verdict and a motion for new trial. The motions were heard at the same time and both were granted. Plaintiff appeals from the judgment notwithstanding the verdict and the order granting defendant a new trial and he seeks reinstatement of the judgment on the verdict.

In May 1954, defendant made an oral agreement with plaintiff's employer, Los Angeles Tractor & Equipment Co., for the hiring of earthmoving equipment to be used in clearing and grading approximately 14 acres of hillside land owned by defendant. Defendant agreed to pay an hourly rental for the use of the equipment and for the services of operators to be provided by the tractor company.

Plaintiff was an experienced tractor operator. He was ordered by his employer to report for work at defendant's job site and he reported to Charles McDaniel who was defendant's superintendent in charge of the grading operations. Plaintiff worked at the job site for approximately a month until the date of his accident; during that period his salary was paid by the tractor company. His duties consisted of keeping the equipment in repair and in clearing and grading defendant's acreage with his bulldozer.

June 19th, McDaniel told plaintiff to cut a slope and remove the brush on a certain hill within stake lines marked by defendant's surveyors. Plaintiff moved downhill on his machine, and after pushing a load of dirt and brush down a bank, he found that his bulldozer had insufficient traction to enable him to move backwards. Plaintiff got off the machine and examined the ground behind and on both sides of his bulldozer. However, he could not examine the ground in front of him. His view of the terrain ahead of him was obscured by a tangle of brush as high as his machine; it was so heavy that ‘a mouse couldn't get through it.’ McDaniel was standing about 50 feet below the bulldozer and to the left. Plaintiff then signaled to McDaniel with his hands that he wanted to pivot to his right and go downhill. McDaniel signaled for him to stop and then motioned to another operator who drove up and cut a bank below the place where plaintiff's bulldozer was resting. McDaniel then gave plaintiff a signal to go straight ahead. McFarland put his machine in low gear and eased forward a few feet, whereupon its right track fell into a ‘sudden drop’ and the bulldozer overturned, severing plaintiff's right leg and fracturing his left ankle.

The pleadings placed in issue the negligence of defendant and the contributory negligence of plaintiff. In an amendment to the answer, it was alleged that McFarland was a special employe, acting within the scope of his special employment at the time of the accident. It was also alleged that both parties were subject to the Workmen's Compensation Act; that plaintiff had applied for and obtained benefits under the Act; that under the provisions of the Act the court has no jurisdiction; and that plaintiff is barred from maintaining an action for damages against defendant and his remedy is limited to proceedings for workmen's compensation.

The verdict of the jury implies that it made findings in favor of plaintiff on the issues of negligence and contributory negligence and findings adverse to defendant on its defense of special employment.

Under section 629 of the Code of Civil Procedure, the order granting defendant's motion for a new trial would be operative only in the event the judgment notwithstanding the verdict should be reversed. Our attention will be directed first to the judgment notwithstanding the verdict. Under well-established principles, our sole question on the appeal from that judgment is whether under an interpretation and application of the evidence and inferences most favorable to plaintiff there was substantial evidence to support each finding essential to a judgment in his favor. 28 Cal.Jur.2d 678.

As we have said, the jury found that McFarland was not in the special employ of defendant. This finding was indispensable to his recovery, for as we shall see, if he was a special employe, the court was without jurisdiction to award him damages.

Under section 3601 of the Labor Code, where the conditions of workmen's compensation exist, the right to recover such compensation is the exclusive remedy of the employe against his employer for injury, except where, as provided in section 3706, the latter fails to secure the payment of compensation by being insured against liability for the same. A special employe is deemed to be an employe within the meaning of these statutes. Wessell v. Barrett, 62 Cal.App.2d 374, 144 P.2d 656.

Our question is therefore whether the relationship between the parties was one of a special employment. Upon conflicting evidence or evidence susceptible of two interpretations, the question would be one of fact and the jury's implied finding having support in the evidence would be binding on us on the present appeal. But in our opinion it was an inescapable conclusion from the evidence that McFarland was a special employe.

We have already mentioned that plaintiff remained on the payroll of the tractor company until June 19th. McFarland was skilled in repairing tractors and other earthmoving equipment and was classified as a master mechanic. He was in charge of maintaining and repairing the equipment loaned by the tractor company and he received no instructions from defendant regarding the maintenance and repair work, which he performed at the job site whenever repairs were necessary. The tractor company did not send its own superintendent to the job site. McDaniel gave instructions to plaintiff and his fellow workmen respecting the grading and clearing work. Although he testified he had no authority to ‘discharge’ them but could send them back to the tractor company, which could discharge them or put them on another job, he also testified that he did discharge operators who had been furnished by Tractor with the equipment. On June 19th, McDaniel told plaintiff to discontinue other work he was doing and to cut a slope on the hill where the accident occurred. He told plaintiff that he wanted a road built before actual removal of dirt started and told him where he wanted the road. It was established that McDaniel did not tell the workmen how to operate their machines but he outlined the work and told them where to go and what he wanted done. McFarland testified that when he signaled McDaniel for instructions, just before the accident, and received a signal from McDaniel, he considered the signal to be an order.

McFarland contends that he was not a special employe because his primary duties consisted of maintenance and repair work over which defendant had no control and respecting which McDaniel gave him no instructions. He argues that complete relinquishment of control is essential to the creation of a special employment, citing Billig v. Southern Pacific Co., 189 Cal. 477, 209 P. 241 and Lowell v. Harris, 24 Cal.App.2d 70, 74 P.2d 551. Each was an action against an employer for the alleged negligence of an employe who had been hired by another to operate an instrumentality owned by the employer. The question involved was whether the latter was to be excepted from the rule of respondeat superior by reason of the hiring. In the Lowell case, the court stated, 24 Cal.App.2d at pages 76–77, 74 P.2d at page 555: ‘An employee may be in the general service of one person, and may be lent or hired to another for some special service; and if in that service he is subject wholly to the direction or control of that other person, the latter, and not the general employer, is the master pro hac vice, and is liable for injuries caused by negligent or wrongful acts of the employee, while engaged in the performance of duties pertaining to such special service. * * * The existence of the right of control over the employee is the critical test of liability for his acts. It is the right to exercise control rather than the mere fact of its exercise which is decisive.’

However, the rule of undivided control set forth in Billig, Lowell and other respondeat superior cases is not germane to the question whether McFarland was defendant's employe for the purpose of establishing workmen's compensation liability. Entremont v. Whitsell, 13 Cal.2d 290, 296, 89 P.2d 392. It has been recognized in the industrial accident cases that an employe may at the same time be subject to both a general and a special employment. Stewart & Nuss, Inc. v. Industrial Accident Comm., 55 Cal.App.2d 501, 506, 130 P.2d 985, and cases cited. There is no inconsistency between the two relationships, nor is the existence of the latter contrary to any presumption that the former continues to exist until it has been terminated. Code Civ.Proc., § 1963, subd. 32.

The test of a special employment within the purview of the Workmen's Compensation Act is whether the supposed special employer has some power, not necessarily complete, to direct and control the actions of the injured person at the time of the accident. Industrial Indemnity Exchange v. Ind. Acc. Comm., 26 Cal.2d 130, 135, 156 P.2d 926, and cases cited; Wessell v. Barrett, supra, 62 Cal.App.2d 374, 376, 144 P.2d 656. The relationship may be shown by evidence of the right of control, whether that right is exercised or not. (Guarantee Ins. Co. Limited Mutual v. Ind. Acc. Comm., 22 Cal.2d 516, 519, 139 P.2d 905, and cases cited; National Automobile Ins. Co. v. Ind. Acc. Comm., 23 Cal.2d 215, 219, 143 P.2d 481), or by evidence of the actual exercise of control. Industrial Indemnity Exchange v. Ind. Acc. Comm., supra, 26 Cal.2d 130, 138, 156 P.2d 926; Department of Water and Power of City of Los Angeles v. Ind. Acc. Comm., 220 Cal. 638, 32 P.2d 354.

In his closing brief, McFarland calls our attention to testimony by one Cotter, defendant's general manager, that Voorheis-Trindle did not report his accident to its workmen's compensation insurer and did not list him among its employes in a periodic audit submitted to the insurance company. Plaintiff contends that since defendant did not then consider him to be an employe it may not now adopt an inconsistent position. A sufficient answer to this contention is that defendant's failure to report the accident or to include McFarland in its audit could not have deprived him of his right to workmen's compensation benefits for his injuries. American Motorists Ins. Co. v. Ind. Acc Comm., 8 Cal.2d 585, 67 P.2d 103; Hartford Accident & Indemnity Co. v. Ind. Acc. Comm., 8 Cal.2d 589, 67 P.2d 105.

Plaintiff also relies upon a recent decision in Miller v. Long Beach Oil Development Co., 167 Cal.App.2d 546, 334 P.2d 695, 699, in which the court reversed a judgment for the defendant notwithstanding the verdict upon facts which plaintiff asserts were substantially the same as those of the instant case, from which the court concluded that it could reasonably have been determined from the evidence that Miller was not a special employe of Long Beach. We are in agreement with that decision in every particular. The facts in Miller were not substantially the same as those in our case; they were substantially different. Miller was a foreman for Industrial Suppliers Company. He was injured while his crew was cleaning out a trench on the defendant's property. For a number of years, Industrial had been doing small jobs of construction and maintenance work for Long Beach. It operated as an independent contractor and Miller's crew was assigned generally for the performance of ‘relatively unskilled manual labor such as cleaning the concrete foundations of oilwell pumping units, digging ditches and small construction jobs.’ Industrial supplied the tools and paid the crew's wages. Industrial had undertaken the job in which Miller was injured under a written contract which provided that Industrial, as contractor, was acting as an independent contractor and not as an employe of Long Beach. The court stated: ‘From the record there can be no question but that Industrial Suppliers Company was an independent contractor. * * * Respondent did not have the power to discharge appellant; if dissatisfied respondent might have asked for another foreman, but it had no power to terminate appellant's employment. (Citation.) At the time of the cave-in, Mr. Smith, respondent's construction foreman was not present overseeing the trench cleaning operation, nor was appellant under his direct supervision and control. (Citation.) As the foreman of the crew performing services for respondent, appellant presumably would direct and supervise the activities of his subordinates. The jury might reasonably conclude that Mr. Smith's directions dealt with the results to be accomplished by the group labor of the crew and not with appellant's activities in supervising their performance. * * * Thus the jury might reasonably have inferred that the directions given plaintiff by respondent's construction foreman ‘* * * were merely directions as to the result to be accomplished, such as required in the nature of things to be given to independent contractors in any case.’ Umsted v. Scofield Engineering Const. Co., supra, 203 Cal. 224, 230, 263 P. 799, 801.'

Significant facts are present in the instant case which were absent in the Miller case. Defendants were subdivision engineers specializing in preparing land for builders. They owned the 12 or 14 acres which were being prepared for subdivision; it was hillside property and the terrain was exceedingly rough as shown by an exhibit which we incorporate. Before a permit could be obtained from the city for the subdivision it was necessary to have approval of a map and plans showing the various grades and slopes. A map and plans were submitted and approved. Although the city had approved the plans it was not necessary to have specifications for the work, which had to be done in accordance with the city's standard specifications. When McDaniel was employed by defendant he was known to be a well-qualified man. His duties were ‘to see that the work was executed in accordance with the requirements of the City of Los Angeles, and in accordance with the plans and specifications that had been set forth to represent our company, as to reimbursing Hawthorne to dictate as to the efficiency of the job, as to how many pieces of equipment were necessary to perform the work, and the general duties of a superintendent to oversee the job in out [defendant's] interests.’ One of these duties was to see that the tractor operators removed the brush so that the work would be consistent with survey stakes which were set by surveyors as directed by McDaniel.

Tractor was not an independent contractor. It had not undertaken to grade the land. No plans were turned over to McFarland with instructions to do the work in accordance with them. It does not appear that he had even seen them or that he was informed as to the city's specifications. He was not his own boss, nor a free lance with authority to use his own judgment and determine for himself what would constitute performance of the work in accordance with the plans and specifications. He was not subject to instructions of Tractor, which had nothing to do with the manner in which the work was done. McDaniel had the duty to see that the work was done in accordance with the plans and specifications. That was precisely what he was hired to do. He, and not McFarland, was the one to decide, and if he gave instructions it was McFarland's duty to obey them. It is clear that if McDaniel had been dissatisfied with McFarland's work he could have removed him from the job and called on Tractor to supply another operator. McDaniel so testified. If this had occurred, McFarland's duties for defendant would have been ended. He would have been discharged from a special employment. One of Tractor's operators was Barnett. McDaniel testified that he became dissatisfied with Barnett's services and discharged him and that he discharged others of Tractor's operators. This, of course, he would have had no right to do if the men had been working for an independent contractor. Defendant furnished four Cat Tractors, two Carryalls, a Ripper and a Cow Dozer, with operators. On the day of McFarland's accident there were at least four pieces of equipment working simultaneously. These were all under the supervision of McDaniel.

Plaintiff testified that there were five or six different pieces of equipment used on the job and that McDaniel would tell him which one to use; there were times when a certain area needed an additional cut or an additional fill and this would be directed by McDaniel who usually outlined the work. When such additional work was required McDaniel would tell him where to do it but not how to do it; McFarland was an experienced operator. Defendant had a man on the job, named Achilles, who would check a particular slope for correctness and accuracy, but McDaniel would give the directions for the additional work.

If McFarland was not a special employe of defendant neither was any one of the operators of the seven other pieces of Tractor equipment who were engaged in the same work. Under the theory that no one was in a special employment each of a half dozen operators was working independently of the others, moving earth from one place to another as he saw fit and using his own independent judgment as to how the land should be graded to make it conform to plans he had never seen; meanwhile defendant's superintendent, McDaniel, would be standing by with no authority to give directions, having only authority to remove a workman from the job if he disapproved of his work. A most unreasonable and untenable theory, and yet the only one upon which the existence of a special employment could be denied. And how applicable was the theory of want of control in Miller's case in which both Miller and the defendant's foreman, Smith, testified that Smith would merely tell Miller where clean-up work was to be done and leave it to Miller to determine how it was to be done; he did not tell Miller how it should be done. Thus, the right to control the manner in which the work should be done was exclusively in Industrial, the independent contractor, and there was lacking the element of the right of control in Long Beach which was necessary to create a special employment relationship. The Miller decision is not in point.

The evidence clearly established a special employment entitling plaintiff to workmen's compensation benefits supplied by defendant, and it was irreconcilable with any other conclusion. A holding to the contrary would be inconsistent with the settled law and practice in the application of the Workmen's Compensation Law in situations involving special employment.

The evidence having established as a matter of law that McFarland was a special employe of defendant and was injured within the course of his employment, his exclusive remedy was under the Workmen's Compensation Act. Labor Code § 3601; 27 Cal.Jur. 262–63; Scott v. Pacific Coast Borax Co., 140 Cal.App.2d 173, 177–178, 294 P.2d 1039, and cases cited. The court did not commit error in ordering judgment to be entered in favor of defendant.

The judgment notwithstanding the verdict is affirmed and plaintiff's appeal from the order granting defendant a new trial is dismissed.

SHINN, Presiding Justice.

PARKER WOOD, J., concurs. VALLEÉ, J., dissents. Rehearing denied; VALLEÉ, J., dissenting.