Grizzel v. Good Fellows Grotto, Grill & Oyster House

THOMAS, J.

Plaintiff brings this action against the defendant to recover damages for personal injuries sustained while employed in the making of certain repairs on a building owned by defendant. The record discloses the fact that plaintiff was, at the time of.the trial, a man forty-two years of age, and a carpenter, with some ten or twelve years’ experience in that calling in the city of Los Angeles. That as the result of a conversation had with one Aaron, he went to work on the said building. According to his own testimony, plaintiff had no conversation in reference to his being employed or his employment on said work with anyone, except the said Aaron. In that conversation plaintiff made no inquiry as to whether Aaron was the agent, acting in any capacity for the defendant, or whether he was acting in the matter as an independent contractor.

It further appears from the record that Aaron had entered into a verbal contract with the defendant to con

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struct a certain skylight in the building already referred to; that the price to be paid by defendant to said Aaron was ■stated and agreed upon; that the price so agreed upon was a lump sum, and that for this lump sum Aaron was to furnish all materials and labor. As to these facts there is no conflict in the evidence. After the conversation between Aaron and plaintiff, the latter went to work and proceeded to put in the skylight. After the opening in the ceiling was made, and because of some mistake or miscalculation of said Aaron, by reason of which the opening was' not cut in the proper place, plaintiff was directed by Aaron to extend the same. During this work it was necessary to saw off certain rafters of the building, and to do this plaintiff • and another man employed by Aaron placed a “two by ten” scantling board across the opening and sat upon it. While thus proceeding to saw off the rafters, the ceiling, for some reason not disclosed by the evidence, gave way, causing plaintiff to fall, from which he sustained the injuries damages for which are here sought.

The case was tried by the court without a jury, the court finding for the defendant on all the issues.

The theory upon which this action is prosecuted by plaintiff is that Aaron was the ostensible agent of the defendant. The defendant, on the other hand, contends that Aaron was an independent contractor.