Seckler v. Yamin

KAUFMAN, P. J.

This is an appeal by the defendants from a judgment of $40,000 rendered on a jury verdict in favor of the plaintiff, Leona Seckler, in a wrongful death action. The plaintiff’s son, Howard P. Seckler, the decedent, was working for the defendants as an independent contractor. The defendants, Joseph and Robert Yamin, residents of Texas, doing business as partners in Acme Building Sales, were the successful bidders on certain surplus multiple unit apartment buildings at Fort Ord, which they dismantled and resold as apartments and small houses. During the course of this work, it was discovered that the apartment units each contained a fire wall of concrete bricks which extended the full height of the building. Robert Yamin cut through the building with a saw on one side of the fire wall. Thereafter, the decedent and his uncle completed vertical cuts on the other side of the fire wall, cutting through the entire building so as to free the fire wall. Another subcontractor, L. C. Todd, a house mover, then moved the buildings on each side about 4 to 6 feet from the wall. Todd was initially named as a defendant but was subsequently dismissed by a nonsuit. The decedent and his uncle then worked in the shadow of the fire wall, closing the exposed end of the building. On May 3, 1961, the fire wall collapsed, killing the decedent.

On this appeal, the main contentions are that the trial court erred in: (1) reading to the jury certain instructions based on sections 6400 and 6401 of the Labor Code and the safety regulations issued pursuant thereto; (2) removing the issue of assumption of risk from the jury; and (3) in refusing an instruction based on section 3601 of the Labor Code which sets forth the exclusive remedy of workmen’s compensation benefits. There is no merit in any of these contentions.

Appellants first contend that under

Kuntz

v.

Del E. Webb Constr. Co.,

57 Cal.2d 100 [18 Cal.Rptr. 527, 368 P.2d 127] and

Woolen

v.

Aerojet General Corp.,

57 Cal.2d 407 [20 Cal.Rptr. 12, 369 P.2d 708], they are not liable. The instant case,

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