Young v. Aeroil Products Company

• Decision Date: 17 September 1957
• Docket Number: No. 15363.,15363.
• Citation: 248 F.2d 185
• Parties: Mildred Marie YOUNG, individually and Danny Lee Young, David Ray Young and Daniel Ray Young, through their guardian ad litem, Mildred Marie Young, Appellants, v. AEROIL PRODUCTS COMPANY, Inc., a corporation, Structual Material Company, a corporation and Deryl S. Yundt, Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

248 F.2d 185 (1957)

Mildred Marie YOUNG, individually and Danny Lee Young, David Ray Young and Daniel Ray Young, through their guardian ad litem, Mildred Marie Young, Appellants, v. AEROIL PRODUCTS COMPANY, Inc., a corporation, Structual Material Company, a corporation and Deryl S. Yundt, Appellees.

No. 15363.

United States Court of Appeals Ninth Circuit.

September 17, 1957.

Arlo E. Rickett, Jr., Pomona, Cal., for appellants.

Eugene S. Ives, Los Angeles, Cal., for appellees.

Before LEMMON, CHAMBERS and BARNES, Circuit Judges.

BARNES, Circuit Judge.

This was an action for wrongful death based on diversity of citizenship.¹ It was tried by the District Court sitting without a jury. Plaintiffs, all citizens of the State of Texas, are the widow and minor children of Herbert Weldon Young, deceased, who met a tragic and violent death on March 3, 1954, when a portable elevator collapsed as it was being prepared for removal from a housebuilding job in Los Angeles County.

Some description of the parties named, and those before the Court, seems essential.

The elevator had been manufactured by Sam Mulkey Co., Inc., a Missouri corporation, not served as a defendant. The Aeroil Products Company, Inc., a Delaware corporation, doing business in California, was named and served. It had assembled the manufactured portable elevator in Los Angeles. H. L. Weigert (not a defendant), was a roofing contractor, living in Los Angeles County, California, who employed the decedent. Weigert purchased the portable elevator from Structural Materials Company, a California corporation (which never had had physical possession of the equipment but which had in turn paid Aeroil Products Company for the machinery). Aeroil Products delivered the portable elevator directly to Weigert, decedent's employer, on July 7, 1953. Deryl S. Yundt, a defendant, was Pacific Coast Manager of Aeroil Products Company at the time of the purchase of the elevator.

Originally Roofmaster Inc., a California corporation, had been named a defendant. A motion was entered at the end of plaintiffs' case, granting a dismissal as to this defendant upon the ground that no cause for relief was shown as to such defendant.

Plaintiffs in their complaint alleged defective design, defective construction, an inherently dangerous product, and that the portable elevator was falsely represented to be "simple to operate and move, that it was stable, * * * without potential hazards, and * * * could be easily moved by one man." They sought recovery on two different theories of civil liability, negligence and breach of warranty.

Prior to the purchase of this machine, the Aeroil Products Company, Inc. had distributed to various prospective purchasers a booklet designated:

"The Mulkey Commercial All-Steel Portable Elevator — It's Balanced!"

This booklet described in some detail, (through pictures and words hereinafter specified) the machine Weigert purchased, and Weigert had received a copy of such booklet.

Young used the machine in his work for Weigert, during all the time Weigert had owned the machine prior to the accident, a period of approximately eight months. Weigert first had explained to his employees, including the decedent, how the machine worked. He had used Plaintiffs' Exhibits 1 and 6 to so explain.

Two matters of importance occurred prior to the use of this machine on the day the decedent met his death.

(1) The machine on at least two occasions had capsized or fallen over or had been pushed over sideways by a motor vehicle. It had not then collapsed. According to invoices in evidence, it had been modified or repaired by welding or by replacing nuts and bolts on four occasions, to wit: on August 28, 1953; on December 31, 1953; on January 23, 1954; and, on February 11, 1954.

(2) On the first occasion (August 28, 1953), Mr. Weigert had had two pieces of eighteen-inch sheet iron welded to the bottom of the front end, "to raise the bottom of the elevator in use 18" from the ground."

On the day the accident occurred, the elevator had been used to carry rock to a roof of a house about 18 feet above the street level and about 10 feet laterally from the curb. Young had worked on the roof removing the rock from the portable elevator. Baker, a fellow-employee, on the ground, had been loading the elevator. After work was completed, Young climbed down the elevator, and he and Mr. Baker removed the motor from the portable elevator, and set it on the truck which was to tow the elevator, once it had been placed in its "folded down" position. Young raised the bottom of the elevator "several inches" (or "three or four inches"), stepped back one step, swung either to his right or his left, and "raised it waist high." The force of gravity brought the upper end down, threw Young in the air, and Young, as he came down, was caught between the hitch and the axle, so as to crush his head and kill him. In doing this, Mr. Young was handling the machine in the same way as he had customarily handled the machine for some several months, although there was testimony that he had been instructed "to always lower the elevator down to a 15 or 20 degree angle or lower before moving it."

Plaintiffs relied, in their attempt to establish liability, on the testimony of an expert witness. To rule on plaintiffs' legal position it is necessary to have some understanding of his testimony. Unfortunately, plaintiffs' expert, Dr. Wood, testified before the trial court at a blackboard, and some of this testimony is not clear to one reviewing the facts in the absence of photographs of the diagrams placed on the blackboard. No copy of these blackboard diagrams is before us. Perhaps it is for this reason that the exact meaning of the testimony of plaintiffs' expert, and the effect caused by the addition of the two plates welded to the front of the elevator, is not clearly delineated by the written record before us. But we must proceed with the tools at hand.

Dr. Wood testified, in response to a hypothetical question, that there was an inherent defect in the machine; that when lifted by its lower end there was a height at which it reached an "unstable balance position, * * * when the center of gravity of the whole machine is directly over the axle." With the weight of a man on the lower end, there is "a further point, a little higher, at which it would be at an unstable balance condition." The dynamic aspects of the tipping-over action, he said, caused the falling elevator to strike with some impact, and the supporting struts to collapse.

The expert listed certain significant "quantities," which he took into consideration in coming to his conclusions, namely: (1) the front dimensions of the machine, (2) the weight of the machine and its distribution, (3) the height to which the elevator is elevated, (4) the contour of the surface upon which the machine rests, (5) the weight of the man holding on to the trailer hitch, (6) the position of the mean center of gravity.

The plaintiffs' expert testified that the forty-seven pound additional weight of the plates welded "shifts the position of the center of gravity of the entire system to the rear." He further testified that a force of a 129 pound lift was necessary to be exerted at the end of the hitch in order to raise the front or hitch end; which necessary force continually decreased as the end was raised until the center of gravity was over the axle, which was the "unstable point," at which no force was required to hold up the hitch. He computed this position as a raise of 218 inches; "in other words, once the machine (sic) is lifted up 218 inches the machine is in balance all by itself." Tr. 188 With a 150 pound man holding on to the hitch end, this point of balance was estimated at 65 inches, or 5 feet 5 inches above the ground. "Assuming in this particular case that the man was not able or didn't exert his full weight before this point (indicating) was reached, then the machine continues to tip over. * * * there is no possibility of a tipping-over action until the lower end had been raised up to a certain distance, (as) * * * testified to." Without the eighteen-inch plates added, the center of gravity was 8'6" off the ground. With them added, the center of gravity would be approximately 8'11" off the ground.

The defendants offered no evidence.

On this factual basis, the court below denied recovery on both causes of action: negligence and breach of warranty. It made voluminous findings of fact and conclusions of law. Since the two theories of liability postulated by appellants involve somewhat different considerations they will be discussed separately.

Preliminarily, it should be noted that the law of California governs the substantive issues in this case. It was in that state that the machine was purchased and used and where the fatal accident occurred. It is our limited duty to discern the substantive law of California on the issues in controversy and to apply it accordingly. Our task is not to innovate, but to imitate. Where the course of the law remains uncharted, as is the situation with several of the issues in the instant case, it is the duty of the Federal court to examine germane precedents and analogous decisions in California and to endeavor to ascertain from those decisions how the California courts would decide the case at bar. In the absence of direct authority, we must heed such guideposts as the state courts have constructed, for even here true allegiance to the principle of Erie Railroad Co. v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 precludes unrestrained and independent determination in a diversity case.

Negligence

Appellants contend that the apparatus was negligently designed and constructed, that it was inherently defective, and that reasonable inspection on the part of Aeroil, the assembler, would have disclosed the defect. Appellees disclaim that the machine was negligently built and was defective, assert that...