Bracquee v. Mottet Co.

ANGELLOTTI, C. J.

On account of personal injuries received in the course of his employment as night clerk of the Hotel Albany in San Francisco, on April 26, 1913, plaintiff obtained a judgment for damages against defendant corporation, which owned and operated said hotel. We have here an appeal from such judgment.

As will be noted, the injuries were received prior to the enactment of our law creating a liability on the part of an employer to an employee for compensation for injuries received in the course of and arising out of his employment

without regard to negligence.

(Stats. 1913, p. 279.) Hence the resort to an action in the superior court for the damages caused by the injury, wherein, of course, it was essential to a recovery by the employee that there should be alleged and proved some fault or negligence on the part of the employer proximately causing the injury. That in such an action the employer’s liability at all is dependent upon some fault or negligence on his part is a proposition toó thoroughly settled to require discussion.

The complaint does not in terms allege any negligence on the part of the employer. It does allege that he, “while acting in the course of his employment as such clerk at said hotel, was ordered and directed by defendant not to permit a certain boisterous and objectionable man, who was then and there seeking a room in said hotel, to become a guest therein, and plaintiff was then and there ordered and directed by defendant to remove said man from said hotel,’’ and that while he was attempting to obey said order, he was assaulted by said man, and beaten and thrown down a flight of stairs, thus re

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ceiving the injuries. If we assume that this sufficiently shows negligence on the part of the employer, it must be upon the theory that the employer by virtue of his orders to the employee required him to perform new and perilous duties without giving him proper warning of the danger involved. We do not deem it necessary to decide whether the complaint can be held to sufficiently state such a cause of action. The evidence does-not measure up to the allegations of the complaint, and, we are satisfied, was insufficient to support the verdict. At the conclusion of the plaintiff's case a motion for a non-suit was made and denied. It should have been granted. Defendant, however, subsequently introduced its evidence, but this evidence in no degree supplied the defects. At the close of the testimony defendant requested the court to instruct the jury to find for it. This request was denied. It should have been granted, and its denial is assigned as error.