Morehouse

Plaintiff, in an action to recover damages for personal injuries, has appealed from that portion of a judgment which denied him relief against a defaulting defendant. It appears, on the record, that the court erred in ruling that the complaint failed to state a cause of action because of the prohibitions of the Labor Code. 1 The judgment must be reversed.

Plaintiff, a laborer employed by a subcontractor engaging in pouring and finishing concrete on a construction job, sought, by his first amended complaint to recover damages from the general contractor and the latter’s employee Wanzo. The employee was served with a copy of the first amended complaint. He failed to appear, and his default was duly entered by the clerk. It was agreed between the court and counsel for plaintiff that the matter of the hearing on the employee’s default (see Code Civ. Proc., § 585, subd. 2) 2 might be deferred until the termination of a trial involving the plaintiff, the general contractor, and the plaintiff’s employer’s compensation carrier who had intervened in the action (see Lab. Code, § 3852). 3 It was understood that the court might consider the testimony given at the trial and the verdict of the…