Llewellyn Iron Works v. Smith

[476]

YORK, J.

The plaintiff and respondent Llewellyn Iron Works was engaged in erecting tanks for the Dominguez Chemical Company. Prior to the date of the accident which was the cause of the controversy, the respondent hired a crane belonging to defendant and appellant Smith to assist in this work, together with two of the employees of appellant, defendant A. Stratton, who was the operator of the crane, and defendant Norris Balcko, who was the driver of the truck. Norris Balcko, at the time of the trial of this case, was found free of negligence and the case as to him was dismissed, with his costs. The respondent’s cause of action is of the nature known as a derivative one, which arose by virtue of subrogation under the provisions of the Workmen’s Compensation Act. An award was had under the Workmen’s Compensation Act against the Llewellyn Iron Works; this action being brought under authority of section 26 of the Workmen’s Compensation Act (Stats. 1917, p. 854; Amdt. Stats. 1927, p. 1213). Under this section the respondent became obligated to pay workmen’s compensation on account of injuries sustained by respondent’s employees through the negligence of appellants, and became subrogated to the rights of these injured employees against appellants. The respondent’s cause of action, therefore, was a derivative one; that is, the cause of action which the respondent’s employees had against the appellants, and which by virtue of said section 26, was by said section in effect assigned to the respondent.

The trial court found that at the time in question Stratton was in the sole employ of appellant Smith, a general employer, and that Smith’s right of control and supervision over Stratton by virtue of such general employment had not been relinquished to respondent. (Findings I and VII, Clerk’s Trans., pp. 18, 22; Supplement 1, fols. 33 and 45.) Although the principal question to be determined is as to the sufficiency of the evidence to support these findings, the appellants also claim that the evidence is insufficient to support the court’s finding of negligence, and that the court erred in excluding certain testimony. There was some conflict in the evidence, but there was sufficient evidence to sustain the trial court’s finding as to the employment of Stratton and as to Stratton’s negligence.

[477]