128 P. 1031 | Cal. Ct. App. | 1912
The question for solution on this appeal by plaintiff involves the legal integrity of the ruling of the lower court sustaining the demurrer of defendants, the Mahony Bros., to plaintiff's second amended complaint. In an opinion rendered by this court and filed the twenty-third day of the present month and reported ante, p. 223, *266
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Another palpable defect in the complaint arises from the fact that it does not appear that it was necessary for deceased to be in the elevator shaft to do the work required of him by his employer, The Lilley Thurston Co. It will be remembered that Mahony Bros. had the contract of erecting the building and had employed said company as a subcontractor "to do certain work upon said building." The complaint does not disclose the nature of said work or in what part of the building it was to be performed. Whether it had anything to do with the elevator shaft or called for or justified the presence of any of the employees of The Lilley Thurston Company in said shaft does not appear from the complaint. It does appear that deceased was ordered by the foreman of said company to do certain work in the elevator shaft but we have a right to assume that it was not a part of the work that The Lilley Thurston Company were employed by Mahony Bros. to perform. At least, the complaint is uncertain in that respect and hence it does not sufficiently appear that respondents owed the deceased any legal duty. Of course, there cannot be neglect without the existence of a corresponding duty. (Kennedy v. Chase,
In the Grundell case, speaking of the deceased, it is said: "It is not shown, therefore, that he was not a trespasser, and under the most favorable view which could be taken of the pleading, he was at the best a mere licensee. As such licensee, the defendant owed him no duty to keep its premises or its passageways in a safe condition, and no duty being owed by defendant to plaintiff, no negligence could be imputed to the former." There is no pretense that the deceased was employed by Mahony Bros. or that he was in the building by their request or invitation, and if they could be held liable at all, it could only be by virtue of the fact that he was *268 engaged in the work which they had employed the subcontractor to perform, and, as we have seen, the vital fact showing the contractual relation is not found in the complaint.
It could not be maintained that the right of the deceased to be in the building would impose upon respondents any legal obligation to assume that he would go into the elevator shaft or give rise to any duty as to him to operate the elevator in a careful manner. In other words, his license to come upon the premises would not give him the right to roam at will in a manner disconnected from and not pertaining to the business in hand. (Glaser v. Rothschild, 221 Mo. 80, [17 Ann. Cas. 576, 22 L. R. A. (N. S.) 1045, 120 S.W. 1]; Hall v. Poole,
We deem it unnecessary to pursue the subject further. The defects pointed out by the demurrer could easily have been remedied, if the facts existed, and, it may be said, appellant was granted permission to amend. He chose, however, not to avail himself of the privilege and, as we are satisfied the action of the lower court was clearly justified, the judgment is affirmed.
Chipman, P. J., and Hart, J., concurred. *269