Aguirre v. Southern Pac. Co.

• Decision Date: 04 March 1965
• Citation: 232 Cal.App.2d 636,43 Cal.Rptr. 73
• Court: California Court of Appeals Court of Appeals
• Parties: Juan G. AGUIRRE, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, Union Pacific Railroad Company and Pacific Fruit Express Company, Defendants and Respondents. Civ. 10901.

Page 73

43 Cal.Rptr. 73

232 Cal.App.2d 636

Juan G. AGUIRRE, Plaintiff and Appellant, v. SOUTHERN PACIFIC COMPANY, Union Pacific Railroad Company and Pacific Fruit Express Company, Defendants and Respondents.

Civ. 10901.

District Court of Appeal, Third District, California.

March 4, 1965.

Colley & McGhee, by Nathaniel S. Colley, Sacramento, for appellant.

Herbert A. Waterman, San Francisco, for respondents.

PIERCE, Presiding Justice.

Plaintiff brought this action under the Federal Employers' Liability Act (FELA) (45 U.S.C.A. §§ 51-60) against his employer, Pacific Fruit Express Company (PFE), and two railroads, Southern Pacific Company (SP) and Union Pacific Company (UP). It is uncontroverted that the action was for injuries suffered in the course of interstate employment. Defendants, contending there was no triable issue of fact, moved for summary judgment under California Code of Civil Procedure section 437c. The motion was granted and judgment of dismissal followed. On appeal the questions are: (1) Does California Code of Civil Procedure section 437c ever apply in a FELA case? (2) If so, were the affidavits and depositions in support of defendants' motion here adequate to sustain the trial court's finding that no triable issue of fact existed? (3) Was PFE uncontrovertibly shown not to be a common carrier by railroad? (4) Was plaintiff uncontrovertibly shown not to be an employee of the railroads? (5) Is there a total absence of any averred fact which could have justified a finding that the contract between PFE and the railroads was a 'device' to evade FELA? We answer all these questions in the affirmative and therefore affirm the judgment.

Included in the record are affidavits or declarations by the manager of personnel of PFE, its attorney, and its assistant to the vice president and general manager, Mr. Cranmer; also a deposition by the latter and a deposition of plaintiff, Juan Aguirre. These were offered by defendants, the moving party. From these the following facts appear: Plaintiff was injured on May 25, 1960, while working as a carpenter inside a refrigerator car located on tracks in the PFE repair yard in Roseville, California. The injury was caused by the falling of a bulkhead in the car. Aguirre was employed by PFE and the work was performed under the direction of his foreman, also employed by PFE.

PFE owns and maintains a fleet of 21,954 refrigerator cars. It lets them to practically all the railroads of the United States. The cars are used to transport by rail perishable fruits and vegetables which require refrigeration or heating while en route. In addition to the letting of cars PFE provides protective services against heat or cold. These are furnished at stations at various points along the route of travel in fourteen states. Such service is by use of ice or mechanical refrigeration or heating. It is rendered by employees hired and paid and wholly controlled by PFE at these stations, all of which are owned or leased by PFE. With one exception it does not move its cars or control their movement, either en route or for switching purposes at its various servicing yards. Switching operations are purchased by PFE from the various railroads. The one exception is that at Roseville one yard switch engine is owned and operated by PFE, but solely within its own yard.

PFE also owns and lets a number of trailers under contracts with thirty-three railroads and is presently negotiating with sixty-one other railroads for the letting of trailers.

Every year PFE sends out representatives to survey growing crops. The purpose of this is to estimate the size and date of harvest of the crop so the number of cars needed and when they will be needed can be estimated. The information thus received is furnished the railroad affected. No separate charge is made for this service. It is included in the rentals per mile for the letting of the cars. Sometimes when a crop is ready for shipment the grower will notify PFE, sometimes he will notify the railroad. Whichever is notified the information is relayed to the other.

PFE was organized as a corporation in December 1906 under the laws of the State of Utah. It was created by defendants Southern Pacific Company (SP) and Union Pacific Railroad Company (UP). Each then owned and now owns 50 per cent of PFE's corporate shares. Mr. Cranmer avers that prior to the organization of PFE neither of the railroads had performed the functions of PFE described above.

PFE has its own board of directors none of whom are directors of either UP or SP. It has approximately four thousand employees. Its net assets in 1962 were approximately $148,000,000. Its net income in that year was $5,000,000. Its places of business are separate from the railroads.

Plaintiff's sole affidavit in opposition to the motion for summary judgment is that of his attorney. It avers that plaintiff had fully explained the facts and circumstances of the case to affiant, that affiant believed them to be true, and that under them it was affiant's opinion that the case was properly brought under FELA; that said opinion was based upon the attorney's experience in many FELA cases, two of which had reached the Supreme Court. This opinion is a conclusion of law.

The only averments of fact, therefore, which are before us are those in defendants' affidavits and depositions.

The preliminary questions are whether the issues are determinable upon a motion for a summary judgment under Code of Civil Procedure section 437c and, if so, whether defendants' moving papers are adequate.

Section 437c provides that where a claim is made by the defendant that the action has no merit or, by the plaintiff, that there is no defense to the action, the issue of whether or not there is a 'triable issue of fact' may be tested by the court on motion by affidavits. The affidavits in support of the motion 'must contain facts sufficient to entitle plaintiff or defendant to a judgment in the action,' and the affidavits in opposition to the motion 'shall set forth facts' showing (if the opposing party be the plaintiff) that he has 'a good cause of action * * * upon the merits.' (Emphasis supplied.) It will thus be noted that factual averments are specified, although it has been held that 'such affidavits to be sufficient need not necessarily be composed wholly of strictly evidentiary facts.' (Eagle Oil & Ref. Co. v. Prentice, 19 Cal.2d 553, 556, 122 P.2d 264, 265.)

The trial court in considering a motion for summary judgment determines only whether a triable issue of fact has been presented. If one has been presented the court is not empowered to determine the issues summarily. Such determination must await trial. (Stationers Corp. v. Dun & Bradstreet, Inc., 62 A.C. 427, 431, 42 Cal.Rptr. 449, 398 P.2d 785.) In making the 'triable issue of fact' determination the court must strictly construe the affidavits of the moving party, liberally construe those of the opposing party. (Eagle Oil & Ref. Co. v. Prentice, supra, 19 Cal.2d at p 556, 122 P.2d 264; Stationers Corp. v. Dun & Bradstreet, Inc., supra, at p. 432, 42 Cal.Rptr. 449, 398 P.2d 785.) But properly invoked, the purpose of section 437c is salutary. It 'undertakes the expedition of litigation by the elimination of needless trials * * *.' (Spencer v. Hibernia Bank, 186 Cal.App.2d 702, 712, 9 Cal.Rptr. 867, 872; appeal dismissed and certiorari denied 368 U.S. 2, 82 S.Ct. 15, 7 L.Ed.2d 16; see also Coyne v. Krempels, 36 Cal.2d 257, 223 P.2d 244.) In the case last cited the court stated (on p. 262, 223 P.2d on p. 247): 'The procedure for the entry of a summary judgment provides a method by which, if the pleadings are not defective, the court may determine whether the triable issues apparently raised by them are real or merely the product of adept pleading.' And that case also points out that where the moving party's affidavits set forth facts sufficient to sustain a judgment in his favor and those facts are uncontroverted by the affidavits of the opposing party, a summary judgment is proper. (Coyne v. Krempels, supra, at p. 263, 223 P.2d 244.) In Pacific Inter-Club Yacht Ass'n v. Richards, 192 Cal.App.2d 616, at page 620, 13 Cal.Rptr. 730, at page 732, this court said: '[I]f the opponent's affidavits raise no genuine issue of material fact, but only create an issue of law, summary judgment is proper. Bank of America Nat. Trust & Save Ass'n v. Casady, 15 Cal.App.2d 163, 59 P.2d 444.'

Plaintiff contends that the California summary judgment procedure is not available in a FELA case. He cites in support of that proposition two cases brought under the Tucker Act in the Federal Court, United States v. Lindholm, 9 Cir., 79 F.2d 784, and United States v. Stevenson, 9 Cir., 79 F.2d 788. But in those cases the court, while expressly recognizing that in an ordinary civil suit the desirability of shortening the procedure by the elimination of unnecessary delays was unquestioned, and while stating that state summary judgment procedure statutes had been recognized as controlling under the Conformity Act (28 U.S.C.A. § 724), held that this rule could not be applied in proceedings by veterans to recover disability payments under war risk insurance as provided by the Tucker Act (24 Stat. 505). The reason for this ruling becomes clear by reading the provisions of the Tucker Act (recited in the Lindholm decision). That act, in itself, provides a proceeding summary in nature, quite irreconcilable with state summary judgment laws which, if superimposed thereon, would merely cause confusion. No such incompatibility exists in cases brought under FELA. They are merely special statutory tort liability actions. And whenever specific provisions therein do not conflict we perceive no reason why state practice rules should not apply, and it has been so held. (Minneapolis & St. Louis R. Co. v. Bombolis (1915) 241 U.S. 211, 36 S.Ct. 595, 60 L.Ed. 961.) In Reynolds v. Atlantic Coast Line R. Co. (1952) 5...