Collier v. Steinhart

By the Court: The demurrer to the complaint was properly sustained. Plaintiff, the appellant, relies on section 1970 of the Civil Code, which provides: “An employer is not bound to indemnify his employee for losses suffered by the latter in consequence of the ordinary risks of the business in which he is employed, nor in consequence of the negligence of another person employed by the same employer, in the same general business, unless he has neglected to use ordinary care in the selection of the culpable employee.”

The complaint alleges that the defendants had no immediate connection with the employment of Westlake, the engineer, or of any other of the laborers, servants or em[118]ployees, but that Clenden, the superintendent, “had full power and authority to superintend, direct, manage and control the working and operating of said mines, and to employ any and all servants and laborers in and about the working and operating thereof, and to discharge them or any of them at discretion, in the name of, for, and on behalf of the defendants.” This averment is not qualified by the subsequent allegation that all servants and laborers “were under the immediate control and direction of defendants through their said agent.”

The complaint counts on the negligence and want of skill of Westlake, the engineer, and that “defendants did not use ordinary skill in selecting said Westlake.” But as we have seen, Westlake was employed by and was under the direction of Clenden, the superintendent, and there is no averment that the defendants were negligent in selecting and employing Clenden.

Judgment affirmed.