Balzeca v. Lorentzen

WARD, J. This is an appeal by defendant from an amended judgment and order of the court, following a jury verdict, awarding plaintiff the sum of $1,500 damages for personal injuries, and attorney’s fees of $500. (Labor Code, § 3706.)

Respondent in performing her duties as apartment house manager for appellant was injured by a fall from a ladder while she was replacing an electric light bulb. She claims that the ladder furnished by appellant collapsed as the result of the unsafe condition in which it was maintained. Immediately after the accident, and while respondent was still lyjng upon the floor, appellant ascended the same ladder and completed the work of replacing the globe.

[372]An attorney living in the apartment house called upon the Industrial Accident Commission shortly after the accident and, representing himself to be the attorney for appellant, stated that while the latter did not carry compensation insurance, she admitted liability and that she would pay respondent compensation and furnish hospital and medical care. The commission so advised the respondent by letter, sending a copy thereof to the attorney. Incidentally both the attorney and the appellant informed the commission that the matter of compensation insurance had been overlooked, and they immediately applied for its issuance. Appellant contended at the trial that she had discharged respondent six days prior to the accident; nevertheless the latter was still living in one of the apartments which was furnished her as part compensation for her services as manager, and apparently was still performing duties in connection with the house.

Appellant urges that there was prejudicial error in the refusal of the trial court to give certain specified instructions on the question of unavoidable accident; also that the record fails to show any authority on the part of the attorney (who did not represent her in the present action) to make any admissions to the commission, and that it was prejudicial error to permit officials of that body to testify to such statements, made neither at a hearing nor a trial.

While two of appellant’s proposed instructions on the question of unavoidable accident were refused, the court, at her request, did instruct the jury in part as follows: “. . . if you find that the evidence herein shows by a preponderance thereof that defendant did use reasonable care to supply plaintiff with the ladder in question, or that plaintiff sustained the injuries by reason of her own negligence or through an unavoidable accident, then you will find a verdict for the defendant.” This instruction was more favorable to appellant than she was entitled to have given. In her opening brief, she states her position as follows: “Defendant at the trial contended that it could well be inferred that the fall of plaintiff was due to an unavoidable accident. That is, considering the hazardous position that she placed herself standing on top of the ladder, requiring a steadying of her position with her hand against the wall, and with the other hand reaching upward and her head tilted toward where the bulb was to be placed.” Under the provisions of Labor Code, sec. 3706, it is not a defense to an action “that the employee was