Thompson v. Robinson-Roberts Co.

WHITE, J.,

pro

tem.

Appeal by defendant from a judgment awarding damages to plaintiff for personal injuries sustained by the latter while repairing a gasoline engine owned and operated by defendant.

This appeal turns largely on the question as to whether plaintiff stood in the position of an independent contractor, or was the servant or general employee of defendant. There was a sharp conflict in the evidence concerning the nature of plaintiff’s employment, but the trial court resolved that conflict in favor of plaintiff.

The trial court found that plaintiff “was not a regular employee of the defendant”, but was “employed for this one job”. In determining the sufficiency of the evidence to support such finding, and the judgment predicated thereon, we deem it appropriate to epitomize the testimony offered on behalf of plaintiff, which, in its material aspects, was that defendant was employed by the county of Los Angeles to remove a boat grounded on the shore off Redondo Beach. In performing this task defendant utilized the services of a diver. Air was provided the diver by a gasoline engine and compressor. The gasoline engine being in need of repairs, plaintiff, who was regularly employed as a mechanic in a near-by garage, received a call to come onto defendant’s barge and fix a gasoline motor. Upon arriving at the barge, plaintiff encountered C. 0. Roberts, vice-president of the defendant corporation, when, according to plaintiff, Roberts asked plaintiff if the latter was a mechanic, to which plaintiff replied in the affirmative. Roberts then said, “Do you know anything about that motor?” to which plaintiff responded, “Yes— what’s the matter with it?” Thereupon Roberts said to plaintiff, “We don’t know what’s the matter with it, but we have had our own men working on it, and they can’t seem to get the motor to run. Can you fix it?” Upon plaintiff’s

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saying, “Yes, I can fix it,” Eoberts replied, “Go to work on it and fix the motor.” According to plaintiff, no price was agreed upon for his work, but he testified he was later paid $13.25 for his services. The testimony of Mr. Eoberts, vice-president of defendant corporation, differed sharply from that of plaintiff, in that Eoberts testified that plaintiff had been working for two or three days prior to the date of the accident as an operator on the engine, and was paid $5 per day for his services.