Miller v. Cabral

Opinion

STONE, P. J.

This appeal is from a judgment entered pursuant to a jury verdict in favor of plaintiff minor in the sum of $20,000. The jury also answered “no” to defendants’ special interrogatory whether the minor was an employee at the time of the accident.

Seven-year-old Calvin Miller, the plaintiff, lived with his parents and three brothers and sisters on a dairy ranch owned by defendants at the time the accident occurred. His father, Robert Miller, had been employed by Frank Cabral the preceding April as a general farm laborer for a monthly salary, the rent-free use of a house on the ranch, and free milk for his family’s use. On August 14, 1966, the father was driving a tractor, hauling a feed wagon parallel to a 250-foot-long feeding manger, spreading hay in the manger from an opening on the left side of the feeder. Calvin was walking in the manger approximately three feet from the ground, alongside the hay feeder, watching the operation. The feeder ceased ejecting hay, and Mr. Miller asked Calvin to look in the expulsion vent to see if it was empty. In attempting to do so, Calvin lost his balance, grabbed an unguarded sprocket and chain which was in motion on the feeder, and sustained serious injury to his left hand.

[505]

Plaintiff, by his mother as guardian ad litem, filed an action for damages against the Cabrals. The complaint was framed in two causes of action, one alleging that Calvin was an invitee and that he was injured through the negligence of the Cabrals in maintaining an unguarded piece of equipment. The second cause of action alleged that Calvin was an employee of the Cabrals and that they failed to provide workmen’s compensation insurance coverage. As it developed, the Cabrals were covered by two policies of insurance, a comprehensive liability policy with Cal-Farm Insurance Company and a workmen’s compensation policy issued by State Compensation Insurance Fund. In the face of the workmen’s compensation policy, plaintiff could not recover in a superior court action on the cause of action alleging employment and lack of insurance, and therefore dismissed that cause of action without prejudice. However, after the dismissal, the attorney furnished by Cal-Farm to defend the Cabrals under their comprehensive liability policy asked for and obtained an amendment to the pretrial order raising the issue whether Calvin was an employee of the Cabrals. Accordingly the issue of employment was litigated, as well as the negligence issue, and defendants submitted to the jury the following interrogatory: “At the time of the accident in question, was the plaintiff minor, Calvin Miller, an employee of the defendants, Frank Cabral and Marie Cabral?” The jury’s answer was “No.”