Opinion
4-3-1950
POPEJOY v. HANNON et al. Civ. 17591.
Sidney A. Moss, Los Angeles, Henry F. Walker, Los Angeles, of counsel, for appellants. Rogers & Carnes, Byron R. Bentley, Los Angeles, for respondents.
POPEJOY
v.
HANNON et al.
April 3, 1950.
Rehearing Denied April 14, 1950.
Hearing Granted June 1, 1950.
Sidney A. Moss, Los Angeles, Henry F. Walker, Los Angeles, of counsel, for appellants.
Rogers & Carnes, Byron R. Bentley, Los Angeles, for respondents.
McCOMB, Justice.
From a judgment in favor of plaintiff after trial before a jury in an action to recover damages for personal injuries, defendants appeal. There is also an appeal from the order denying defendants' motion for judgment notwithstanding the verdict.
Facts: Defendant Mutual Molding and Lumber Company is a partnership composed of the other three defendants. Defendants Hannon engaged in the lumber milling business at 93rd Street and Hooper Avenue in Los Angeles. A small lumber yard, 60 feet by 60 feet was on the northwest corner of the streets above mentioned. On the southwest corner was the milling plant. At the northwest corner of the lumber yard was a small office eight by eight feet. There were two telephones in this office, one listed to defendants and the other to H. Sugarman. The sixty foot square lumber yard had a driveway from 93rd Street and was used to stack lumber which the trucks loaded and unloaded. The surface of the lumber yard was asphalt, and had a slight southeast slope or inclination.
Defendants employed H. Sugarman as yard foreman. It was his duty to stack lumber in the yard, to load and unload it. In addition to his job as yard foreman, he was engaged in a separate and independent enterprise, a trucking business. In connection with his own trucking business he employed plaintiff as a truck driver on one of his trucks. Plaintiff was in Mr. Sugarman's employ from June, 1947 until December 15, 1947, the date of the accident hereinafter described.
Defendants owned a hyster which was used in the lumber yard. About December 7, 1947, a load of smooth lumber arrived at the yard. Mr. Sugarman unloaded it and stacked it with the hyster. At the time he noticed that the lumber had no 'stickers' usually placed to stick such lumber together, that the lowest tier of lumber was somewhat wobbly, but he later placed two narrower tiers on top of it. The stack was about 15 feet high.
On December 15, 1947, plaintiff arrived at work and drove his employer's truck to deliver a load of lumber. He returned about 4:15 p. m. and parked Mr. Sugarman's truck on 93rd Street. He walked onto the premises and noticed that a customer was there, and that Mr. Kemp was on the hyster. Mr. Kemp stopped the hyster and got off, whereupon plaintiff got on the hyster and used it to take the top tier from the stack of lumber to place it on the customer's truck. There was one tier still standing on the stack. Later he got back on the hyster, put the prongs of the hyster under the one remaining tier stack as far as they would go, got off and removed the two exposed cross-blocks from the top and examined the prongs to see how far they were under the load. The three-tier stack was about 20 inches behind the load. After getting back on the hyster he started to lift the load and had it about two feet up when the three-tier stack began to fall. He swung his leg up over the steering wheel and jumped, landing on his right knee and skinning the back of his hand. As a result of his fall, plaintiff suffered a fractured kneecap, and has a permanently damaged right knee.
The jury returned a verdict in favor of plaintiff in the sum of $25,000.
Questions: First: Are defendants liable to plaintiff for negligence since he was not in their employ but was employed by Mr. Sugarman who was an independent contractor?
This question must be answered in the affirmative. Defendants argue with logic that plaintiff's exclusive remedy was in the proceeding before the Industrial Accident Commission, and since he could not maintain in the courts an action against his employer, Mr. Sugarman, who was primarily liable to him, he cannot maintain an action against defendants on the theory of respondeat superior since such doctrine imposes a secondary liability on defendants. Since there is no primary liability, there obviously cannot he a secondary liability. Though the logic of the foregoing reasoning is evident, our Supreme Court has not seen fit to follow it, and has held that the Workmen's Compensation Laws are not designed to relieve any one other than the employer from liability imposed by statute or by common law. (Baugh v. Rogers, 24 Cal.2d 200, 214, 148 P.2d 633, 152 A.L.R. 1043.)
Clearly under the facts alleged plaintiff had a common law cause of action against defendants, and under the rule just stated this cause of action was not destroyed when his employer by virtue of the Workmen's Compensation Law was relieved from liability to him in the courts.
Meyers v. Tranquility Irrigation District, 26 Cal.App.2d 385, 79 P.2d 419, which might seem to reach contrary conclusions, is distinguished in Baugh v. Robers, supra, see 24 Cal.2d at page 212, 148 P.2d at page 640, 152 A.L.R. 1043.
Second: Did the trial court commit prejudicial error in refusing to instruct the jury on the duty defendants would own (a) to a licensee, or (b) to a trespasser?
This question must be answered in the negative. The trial court instructed the jury as to the duty defendants owed to an invitee. Defendants' own evidence disclosed that plaintiff was an invitee and not a licensee or trespasser. Mr. Sugarman, called as defendants' witness, testified that he saw plaintiff loading a customer's truck with the stacker and left him there so doing to go across the street at another employee's request; also that he had seen plaintiff operating the hyster five or six times on other occasions; that he had many jobs to do and would go over to the mill to make out a mill ticket and the carrier would bring over a load of lumber to the truck, and at times plaintiff would get on the hyster and lift the load up and set it on the truck while he was making out the mill tickets.
Clearly the evidence would not have sustained a finding that plaintiff was a licensee or trespasser. Hence the trial court properly refused instructions relative to defendants' duties toward such persons. (Tschumy v. Brook's Mkt., 60 Cal.App.2d 158, 166, 140 P.2d 431; Oettinger v. Stewart, 24 Cal.2d 133, 137, 148 P.2d 19, 156 A.L.R. 1221.)
Such cases as Keena v. United Railroads, 57 Cal.App. 124, 207 P. 35, and Wright v. Los Angeles Ry. Corp., 14 Cal.2d 168, 93 P.2d 135, relied on by the defendants, are clearly distinguishable on their facts for the reason that in such cases evidence had been introduced which would have supported the proffered instructions. Such is not the case here
Third: Did the trial court err in instructing the jury as follows? 'If you find that the condition of the premises at the time and place of the injuries in question was dangerous and that the defendants or their agents, including H. Sugarman, their foreman, knew or should have known of such danger, and if the said dangerous condition was not known to the plaintiff and he was not negligent in failing to discover same, you are instructed that the defendants owed a duty to inform plaintiff of said danger and a failure in that regard would constitute negligence on the part of the defendants.'
This question must also be answered in the negative. Defendants' contention that the instruction was erroneous because it did not state that it was inapplicable if the jury should find that plaintiff was not an invitee, is without merit for the reason that the uncontradicted evidence shows that plaintiff was an invitee. (Blank v. Coffin, 20 Cal.2d 457, 461, 126 P.2d 868.)
Neither is there any merit in defendants' contention that the instruction was erroneous because it omitted these words, 'who has no basis for believing that they will discover the condition or realize the risk involved therein.' The omitted portion of the instruction was given in substance by the court in another place where it stated, 'The defendants were not obliged to give the plaintiff notice of a danger which might arise from causes or conditions which were readily apparent to the eye; the defendants were entitled to assume that the plaintiff would perceive and see that which would be obvious to him upon the ordinary use of his sense of sight, and the defendants were not required to call the plaintiff's attention to or notify him of a condition which would be readily apparent to him upon the ordinary use of his eyesight.'
Instructions must be read as a whole and if they harmonize as a whole and fairly and accurately state the law, a reversal will not result because a separate instruction does not contain all the elements which are to be gathered from the instructions as a whole. (Carney v. RKO Radio Pictures, Inc., 78 Cal.App.2d 659, 666, 178 P.2d 482.) This rule is clearly applicable here. The instructions read as a whole were correct.
Fourth: Did the trial court err in instructing the jury as follows? 'If the plaintiff Mac Wade Popejoy, at the time of the accident, was in the employ of H. Sugarman, and while acting in the scope of such employment was working upon the premises of the defendants assisting the defendants and their employees, in the course of loading a truck with lumber, and if the defendants or their employees knew of such fact and acquiesced therein, then you are instructed that the plaintiff Mac Wade Popejoy was an invitee toward whom the defendants owed the duty to use ordinary care to have the premises in a safe condition and to supply a safe place in which to work, and if you further find that the defendants or their employees failed in this regard and that such failure was a proximate cause of the injury to the plaintiff and that plaintiff was not guilty of contributory negligence, you will bring in a verdict in favor of the plaintiff Mac Wade Popejoy.'
Such instruction was a correct statement of the law under the facts of this case. Contrary to defendants' contention it did not merely state that plaintiff was an invitee if defendants had knowledge and acquiesced in his presence on their premises. A reading of the instruction shows that it contained the other elements necessary to constitute him an invitee.
Herzog v. Hemphill, 7 Cal.App. 116, 93 P. 899, is factually distinguishable from the instant case as pointed out in the opinion in the cited case. There was no allegation that the urinal to which plaintiff was going was designed or used as a part of the business conducted on the premises. In the case at bar it is conceded that the hyster which was being operated by plaintiff was a part of defendants' equipment and used in their business.
Fifth: Did the trial court commit prejudicial error in instructing the jury that if certain facts existed, 'then you are instructed that the plaintiff Mac Wade Popejoy was an invitee toward whom the defendants owed the duty to use ordinary care to have the premises in a safe condition and to supply a safe place in which to work,' and that if defendants failed so to do and if such was a proximate cause of injury to plaintiff and if plaintiff was not guilty of contributory negligence, then 'you are instructed to bring in a verdict in favor of the plaintiff Mac Wade Popejoy.'
This question must likewise be answered in the negative, for the reason that in addition to the foregoing instruction the trial judge instructed the jury as follows:
'Toward an invitee, he who extended the invitation, express or implied, is obliged to refrain from active negligence and to exercise ordinary care to keep the premises in a condition reasonably safe for the invitee,' and 'Ordinary care is that care which persons of ordinary prudence exercise in the management of their own affairs in order to avoid injury to themselves or others.'
Defendants' stricture that these instructions were erroneous because it imposed upon defendants the duty to exercise ordinary care to keep their premises in a safe condition whole their true duty is to exercise ordinary care to keep their premises in a reasonably safe condition is without merit for the reason that it had been held that 'safe' means 'reasonably safe' and that the expressions are synonymous and interchangeable. (Jones v. Bridges, 38 Cal.App.2d 341, 346, 101 P.2d 91.)
Sixth: Did the trial court commit prejudicial error in giving defendants' contingently requested instruction reading thus? 'If an instruction on res ipsa loquitur is given, the defendants request that it be followed by:
'Defendant's instruction No. 24.
'The defendants, however, are not required to prove by a preponderance of the evidence that they were free from negligence which proximately caused the lumber to fall. They are bound to produce only sufficient evidence to create in your minds such doubt as to why the lumber fell that you cannot say you are convinced by a preponderance of the evidence that the falling of the lumber was proximately caused by the negligence of the defendants.'
This question must also be answered in the negative. It is true that the court did not give plaintiff's requested instruction on the doctrine of res ipsa loquitur. The court correctly instructed the jury as to the burden of proof and the instruction quoted above was immaterial. Such instruction is consistent with the one given upon the burden of proof, contrary to defendants' contention. The instruction to the jury does not say they had to prove freedom from negligence by a preponderance of the evidence. It merely states that all they had to do was to produce enough evidence so that the jury was not convinced by a preponderance of the evidence that the defendants were guilty of negligence.
Seventy: Did the trial court err in refusing to instruct the jury on the doctrine of assumption of risk?
This question must likewise be answered in the negative. The undisputed evidence disclosed that plaintiff was an invitee. Since an invitee does not assume the risk of latent dangerous of which he has no notice, it was proper to deny the request. (Oettinger v. Stewart, 24 Cal.2d 133, 139, 148 P.2d 198 156 A.L.R. 1221; Ostertage v. Bethlehem Shipbuilding Corp., 65 Cal.App.2d 795, 802, 151 P.2d 647. See also DeGraf v. Anglo California Nat. Bank, 14 Cal.2d 87, 100, 2 P.2d 899.
Judgment and order affirmed.
MOORE, P. J., and WILSON, J., concur. --------------- * Subsequent opinion 231 P.2d 484. 1 A piece of equipment used in a lumber yard consisting of a small truck-like machine on wheels with rear-end motor and having two five-foot prongs extending out at the front end (the prongs being movable up and down in a horizontal position) for the purpose of moving and stacking pieces of lumber. The operator's seat is on the machine with the motor below and to the rear. Above the seat is a canopy of pressed steel attached to metal bars.