Mabie & Mintz v. B & E INSTALLERS

Opinion

BROWN (Gerald), P. J.

Cross-defendant B & E Installers, a partnership, appeals judgments on two cross-complaints awarding defendants and cross-complainants, Mabie & Mintz and San Diego Glass & Paint, damages, costs, and attorneys’ fees, as indemnity for settlements both firms made with personal injury plaintiff Robert L. Farmer, a partner in B & E Installers.

Farmer agreed to install windows and sliding doors in the Carousel Apartments for San Diego Glass & Paint. He was to work with the general contractor, Mabie & Mintz, whose superintendent directed the installations. Banner Construction Cbmpany did the framing work which included a shadow, or privacy wall, between each apartment.

While nailing in the windows, Farmer would lean out of the building, put his left foot around a stud on the building’s perimeter, his right foot on the shadow wall, his left hand on the window and nail with his right hand. After he finished nailing, he would take hold of the center stud as a counter-balance. On the day of the accident, the stud came out in his hand; he lost his balance and, carrying the stud, fell backward three stories to the ground, and was injured.

Farmer and his partner, both together and separately, installed the windows. They were equal partners in B & E Installers and split any profits equally. Farmer drew no wages. He did not use a safety belt, and the only plqee he could have attached a safety belt at the time of the accident was to the stud that fell with him.

[494]

Farmer sued Mabie & Mintz and Banner Construction Company, alleging their negligence. He did not sue San Diego Glass & Paint, but Mabie & Mintz cross-complained against San Diego Glass & Paint for indemnification.

Mabie & Mintz and San Diego Glass & Paint separately cross-complained against B & E Installers for indemnification. Before trial Mabie & Mintz and San Diego Glass & Paint settled with Farmer. The main action, with Paul Bastion, dba Banner Construction, as defendant, was tried before a jury; later the remaining issues on the indemnity cross-complaints were tried by the court.

The court instructed the jury in the main personal injury action on nailing requirements from the San Diego Municipal Code, on safety belt and lifeline requirements from the Labor Code, and if a party violated either section and the violation was a legal cause of injury to himself, such violation was negligence unless the party proved he did what reasonably might be expected of a person of ordinary prudence acting under similar circumstances who desired to comply with the law. The jury awarded Farmer $108,224.40 damages.