Labis v. Stopper

Opinion

DRAPER, P. J.

The principal issue on this appeal is the admissibility of testimony of a police officer that he interviewed the foreman and two painters who made up the crew employed by defendants on this job, and that one of the two workmen, whose names the officer did not secure, said he had moved a canvas drop cloth “but he didn’t realize anybody was standing on it at the time.” This conversation with the officer occurred some three hours after plaintiff, a passerby, who walked upon the cloth and fell, was injured. The officer’s testimony was admitted over objection by defendants. Following judgment on a jury verdict for plaintiff, defendants appealed. They assert admission of this evidence as reversible error.

The liability of defendant painting contractor “is based . . . upon the liability, obligation, or duty” of the painter he employed, who was the declarant of the statement quoted by the officer. Clearly the statement, if made by defendant employer, would be admissible against him. Hence, the code (Evid. Code, § 1224) on its face renders the declaration of the painter admissible against defendant employer.

This apparent applicability of section 1224, however, is brought into question by a decision

(Markley

v.

Beagle,

66 Cal.2d 951 [59 Cal.Rptr. 809, 429 P.2d 129]) not cited by appellant. The

Markley

trial had occurred before the effective date of the Evidence Code, and thus the admissibility of evidence was governed by former Code of Civil Procedure provisions (see Evid. Code, § 12). Nonetheless, some language of

Markley

(see 66 Cal.2d at p. 960) purports to exclude from the new, as well as the old, provision “tort

[1005]

liabilities of employees that are imputed to their employers under the doctrine of

respondeat superior.”