Miller v. Dufau

SHINN, J. This is an appeal by E. M. Pyle, doing business as Chesterfields’, from a judgment which awarded plaintiff damages for personal injuries sustained when she fell over a sheet of linoleum which was stretched over a public sidewalk. Appellant’s principal contentions are that there was insufficient evidence to prove that the linoleum was placed on the sidewalk by her agent, that there was no evidence that the act of placing it there was a negligent act, and that plaintiff was conclusively shown to have been guilty of contributory negligence.

Plaintiff was employed in an apartment house owned by Mr. and Mrs. Dufau. A Mrs. Haines was the manager and her duties were to collect the rents, keep the-books and take care of the first floor. Mr. Dufau authorized her to put linoleum in her apartment kitchen and she purchased the linoleum in question from appellant, at the expense of Mr. Dufau. When it was delivered it was spread out upon the sidewalk by one Trejo and another linoleum layer who had brought it from appellant’s store. Plaintiff left the apartment house in the middle of the afternoon, turned to her left as she reached the sidewalk in front of the building, took two or three steps, caught the toe of her shoe on the linoleum and fell. Mr. and Mrs. Dufau were made defendants, but their motions for nonsuit were granted and there is no appeal from the judgment in their favor.

The implied finding was that Trejo was an employee of appellant for the laying of the linoleum; appellant’s contention is that he was employed by Mrs. Haines. There was a sharp conflict on this point between the testimony of Mrs. Haines and that of a Mr. DeG-regory, appellant’s manager. Mrs. Haines testified that she purchased 15 yards of linoleum and understood that it was to be laid by appellant ; Mr. DeGregory testified that neither he nor any of appellant’s other employees had anything to do with the laying of the linoleum. Mrs. Haines produced a sales slip for 15 yards at 89 cents and showing the addition of the figures 13.35 and .40, $13.75, and 4.50, making the total shown of $18.25, together with the words, “plus sales tax,” and, in the handwriting of Mr. DeGregory, “Will pay when laid”; also on the slip were the [186]words, “labor, pd.” and the signature “A1 Trejo.” Mrs. Haines testified that she paid Trejo $18.25 when he had finished laying the linoleum, and that he placed some figures on the bill and receipted it. She denied having made any arrangements with him for laying the linoleum and testified that $18.25 was the full sum she paid. Mr. DeGregory produced a sales slip showing the sale of 20 yards at 89 cents, or $17.80, tax of 53 cents, credit of 8 cents for tacks returned and a balance of $18.25. He testified that the sale was of 20 yards, which Mrs. Haines denied; that Trejo was one of several workmen whom he kept track of for the benefit of customers ; that he made no arrangement with anyone for the laying of the linoleum, and that the $18.25 was the charge for the merchandise and was paid in full. All the witnesses agreed that the entire price paid was $18.25. The testimony of Mr. DeGregory was that this sum was paid exclusive of the cost of labor, but the small credit for tacks returned indicated that he had engaged Trejo to do the work and had made his settlement with him after the work was finished and after Mrs. Haines had paid Trejo in full. The court ■ resolved this conflict in favor of the testimony of Mrs. Haines, expressing the belief that she had told the “absolute truth.” Appellant failed to produce evidence that Trejo was an independent contractor, and the conclusion that he was an employee of appellant for the laying of the linoleum had support in the evidence. His act of spreading the linoleum on the sidewalk was the act of appellant.