Majors v. Connor

MELVIN, J.

Plaintiff was injured by the falling of a brick wall in course of construction, upon which he was working at the time as a mason. The wall in question was a part of an addition to the Hotel Melrose in Los Angeles, and its fall was due to the collapse of faultily constructed piers on the north half of said addition. The Connor & Perry Investment Company was sued as the contractor, and defendant Connor as manager of said company. A verdict in favor of Majors, the plaintiff, for twelve hundred and fifty dollars was returned by the jury, and judgment was entered accordingly. From said judgment and from an order denying their motion for a new trial defendants appeal.

Two general propositions are stated by appellants as bases of their argument on this appeal. One is that the evidence without question- proved plaintiff, to be an independent contractor. The other is that if he was not an independent

[133]

contractor, then his injuries were due to the negligence of his fellow-servants.

Regarding the terms upon which Majors was to work there was a conflict of evidence. - It is not disputed that he was to employ the men to assist him in the brick work, and was to furnish the tools, wheelbarrows, mixing bins, and other things necessary for the use of the bricklayers and was to be paid a certain sum per thousand bricks laid as compensation for himself and his assistants. Nor is there any question that the materials used in the construction of the addition to the hotel were to be furnished by the defendant and that the bricklayers and laborers hired by Majors were to be actually paid by defendants from amounts due Majors under the contract. There is a sharp conflict, however, in the testimony of the witnesses who spoke with reference to the authority to direct the work. Connors said that he reserved no right of supervision nor dictation of the manner in which the work was to be done. He had a foreman named Crow whose duty, he said, was merely to see that Majors followed the proper lines in laying the foundations and erected the piers of the size and at the places indicated in the specifications. Plaintiff testified, however, that as a part of his agreement he was to do whatever Crow told him to do. At least three of the men employed oh the building testified that they were working not under the supervision of Majors but were directed in their labors by either Crow or Connor. Majors also said that he worked under the directions of Connor or Crow. There was abundant evidence therefore to justify the jury in concluding that Majors did not occupy the position of an independent contractor, but that he was a servant, as that term is defined in section 2009 of the Civil Code. As counsel for respondent phrase it, “This was one of those simple work contracts often favored by close figuring owners who do their own building. * . . . They adopt the device of buying so much labor in gross from a single workman, the latter taking the chance of thereby making a slight increase in his own day’s wages.” Even if the agreement as originally made could be considered as one whereby Majors became an independent contractor, nevertheless, Connor by assuming to direct the work either personally or through his foreman, took the responsibility upon himself and his co-defendant which might have rested otherwise upon