Lee v. Cranford

HANSON, J. pro tem.

The plaintiff below appeals from an order granting a new trial to the defendant who, in turn, appeals from the judgment entered upon the verdict of the jury which found against him.

The plaintiff, an airplane-student flight'instructor employed by the defendant, was severely injured as a result of the crash of an airplane owned by the defendant while it was coming in for a night landing at the Oxnard airport. At the time of the accident the plane was being piloted by a student named Jacques who was being supervised and assisted by the plaintiff. The defendant Cranford’s workmen’s compensation insurance failed to cover the plaintiff as an employee, and accordingly, the plaintiff was entitled to and did sue his employer, the defendant, on the theory that the defendant was negligent in supplying him with a plane that was defective and that as a proximate cause thereof the plaintiff was injured. Under the facts of this case, as they are alleged by the plaintiff, the Labor Code (§ 3708), which is here controlling, presumes that the injury sustained by the plaintiff “was a direct result and grew out of the negligence of the employer, and the burden of proof is upon the employer, to rebut the presumption of negligence.” Moreover, under the specific language of the section it “is not a defense to the employer that the employee was guilty of contributory negligence, or assumed the risk of

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the hazard complained of . . .” In short, it is plain under the language of the statute that if the evidence shows plaintiff was an employee of the defendant at the time, then any injury he sustained while in the course of business of his employer must be classed as being proximately due to the negligence of the employer and that the negligence, if any, of the employee is not a defense thereto. Accordingly, it is clear that the statute is not only operative, but likewise controlling if but two facts are proved: (1) that the plaintiff is an employee and (2) that he was injured in the course of the business of the employer as a result of the negligence of the employer. Hence, it follows that the trial court could not grant a new trial in such a case, on the ground of insufficiency of the evidence, unless the evidence was insufficient to sustain both of these grounds. In the case before us the evidence was conflicting on both grounds.

The cross-complaint by the defendant against the plaintiff as cross-defendant, alleged in the first count that the cross-defendant caused a total loss of the airplane through his negligence, and as a second count that the cross-defendant converted the plane to his own use and totally demolished it.