Cabral v. State Compensation Insurance Fund

[510]

Opinion

STONE, P. J.

his is a companion case to the action entitled Calvin Lynn Miller, a minor, by and through his Guardian ad Litem, Wilda Lo-Rein Miller, Plaintiff and Respondent, v. Frank Cabral and Marie Cabral, Defendants and Appellants, in which an opinion was filed this day,

ante,

page 503 [91 Cal.Rptr. 776]. That case involved an action against the Cabrals to recover damages for personal injury sustained on the Cabral ranch. The boy’s father, in the course and scope of his duties on the Cabral dairy ranch, was driving a tractor hauling a feed wagon and dispensing hay from an opening on the side of the feeder into a 250-foot-long manger. Calvin was walking in the manger, approximately 3 feet from the ground, alongside the feed wagon. The flow of hay stopped and Mr. Miller asked Calvin to look into the opening to see if it was empty. In attempting to look into the feeder, Calvin lost his balance, grabbed an unguarded sprocket and chain arrangement which was in motion on the feeder, and sustained serious injury to his left hand. The 7-year-old minor, by and through his mother as guardian ad litem, filed an action against the Cabrals for damages resulting from the injury, framed in two counts. The first alleged that the boy was an invitee, that the defendants breached the duty of care owed the minor, and that his injury was the proximate result of the defendants’ negligence in maintaining an unshielded and unguarded mechanism of the hay feeder. The second cause of action alleged that the boy was an employee of the Cabrals at the time of the accident, that they failed to protect him by not providing workmen’s compensation insurance in violation of Labor Code section 3706. Upon learning that the Cabrals carried workmen’s compensation insurance, plaintiff’s counsel dismissed the second cause of action without prejudice. However, counsel provided by Cal-Farm Insurance Co., the comprehensive liability insurer for the Cabrals, obtained an amendment of the pretrial order to include the issue of employment as an affirmative defense, upon the theory that if the child was an employee his sole recourse would be a proceeding to obtain benefits under the workmen’s compensation laws. (Lab. Code, §§ 3600-3603.) The issue of employment was thoroughly tried, and the defendants submitted a special interrogatory, “At the time of the accident in question, was the plaintiff minor, Calvin Miller, an employee of defendants, Frank Cabral and Marie Cabral?” To this special interrogatory, the jury answered, “No.”