Albers v. Gehrke

• Decision Date: 18 February 1970
• Citation: 84 Cal.Rptr. 846,4 Cal.App.3d 463
• Court: California Court of Appeals Court of Appeals
• Parties: La Vern H. ALBERS, Plaintiff and Appellant, v. Harold GEHRKE, individually and doing business as Industrial Grinding Service, the Greyhound Corporation, a corporation, Defendants and Respondents. Civ. 24803.

Page 846

84 Cal.Rptr. 846

4 Cal.App.3d 463

La Vern H. ALBERS, Plaintiff and Appellant, v. Harold GEHRKE, individually and doing business as Industrial Grinding Service, the Greyhound Corporation, a corporation, Defendants and Respondents.

Civ. 24803.

Court of Appeal, First District, Division 1, California.

Feb. 18, 1970.

Lyons & Morgan, David Jay Morgan, South San Francisco, for plaintiff and appellant; Richard G. Logan, Oakland, of counsel.

Kane, Thrasher & Galligan, Redwood City, for defendants and respondents; Cyril Viadro, San Francisco, of counsel.

SIMS, Associate Justice.

Plaintiff has appealed from a judgment of nonsuit granted the defendant, The Greyhound Corporation, in an action in which he sought to recover damages for such personal injuries as he suffered when a heavy package consigned by the defendant Gehrke ¹ to The Greyhound Corporation for shipment to plaintiff broke shortly following its delivery to him by the carrier. Plaintiff contends that the trial court erred in granting a nonsuit because the evidence offered on his behalf was sufficient to sustain a verdict in his favor either under the doctrine of res ipsa loquitur, or, independently of that doctrine, for negligence of the carrier in accepting an improperly packaged item or in mishandling the package.

'The rules applicable to appeals from nonsuits are well settled.

"(A) nonsuit may be granted '* * * 'only when, disregarding conflicting evidence and giving to plaintiff's evidence all the value to which it is legally entitled, herein indulging in every legitimate inference which may be drawn from that evidence, the result is a determination that there is no evidence of sufficient substantiality to support a verdict in favor of the plaintiff if such a verdict were given.'' ' (Meyer v. Blackman, 59 Cal.2d 668, 671 * * *, 31 Cal.Rptr. 36, 381 P.2d 916.) A legitimate inference, of course, must be founded 'On a fact legally proved.' (Code Civ.Proc., § 1960.) While the use of a nonsuit is a procedural device of great value when appropriately utilized, it may not be used to deprive a litigant of his right to have his case decided by the jury when under the evidence, and the inferences permissible therefrom, a verdict in his favor could reasonably be returned. In this light, we must examine the evidence here involved.' (Kopfinger v. Grand Central Pub. Market (1964) 60 Cal.2d 852, 854--855, 37 Cal.Rptr. 65, 67, 389 P.2d 529, 531. See also, Quintal v. Laurel Grove Hospital (1964) 62 Cal.2d 154, 159, 41 Cal.Rptr. 577, 397 P.2d 161; Fowler v. Seaton (1964) 61 Cal.2d 681, 683, 39 Cal.Rptr. 881, 394 P.2d 728; Seneris v. Haas (1955) 45 Cal.2d 811, 821, 291 P.2d 915, 53 A.L.R.2d 124; Gherna v. Ford Motor Co. (1966) 246 Ca.App.2d 639, 646 and 649, 55 Cal.Rptr. 64; Crawford v. County of Sacramento (1966) 239 Cal.App.2d 791, 797, 49 Cal.Rptr. 115; Greening v. General Air-Conditioning Corp. (1965) 233 Cal.App.2d 545, 553, 43 Cal.Rptr. 662; Reynolds v. Natural Gas Equipment, Inc. (1960) 184 Cal.App.2d 724, 731 and 735, 7 Cal.Rptr. 879; and Biondini v. Amship Corp. (1947) 81 Cal.App.2d 751, 754, 185 P.2d 94.

The Evidence

The record shows that sometime during the week ending Saturday, April 18, 1964, the plaintiff, who operated a manufacturing jobbing machine shop in San Mateo, sent two 12-inch in diameter milling cutters which weighed about 20 pounds each, to Gehrke's industrial grinding company in Santa Clara for resharpening. Plaintiff could not recall in what manner the cutters were delivered to Gehrke on this occasion.

Gehrke had been servicing the plaintiff's milling cutters for several years prior to the incident in question. The cutters involved in this action were one pair of two or more sets which the plaintiff had been using for 8 or 9 months in connection with the performance of a contract with the United States Army. It was the practice to send one of these sets of cutters to Gehrke for resharpening once or twice a week. Sometimes the cutters would be delivered to Gehrke or be picked up by plaintiff or one of his employees and be transported lying open in the back of a pickup truck; sometimes Gehrke would pick them up or return them and transport them in a similar manner; and sometimes they would be shipped by Greyhound bus.

Plaintiff had not discussed with Gehrke the use of any type of container to hold the cutters. He did not know of any box specially manufactured by his employees for the purpose of shipping the cutters. He acknowledged there were boxes lying around from supplies and materials coming into his plant. Testimony was offered to show that packages originating in the plaintiff's plant would ordinarily be strapped with steel strapping.

According to Gehrke the cutters were generally received in a wooden container. They could have been brought in on occasions after transportation in the back of plaintiff's truck without a container, but he was sure that they were not shipped more than once or twice without being in a wooden container. Gehrke acknowledged that there were occasions in which the cutters had been transported without a top on the container. He recalled that the plaintiff himself had brought the cutters to his plant on the Tuesday preceding the accident. According to Gehrke they were sharpened and placed in the same container in which they came.

From the testimony of the plaintiff, of the station agent from whom he received the box, and of Gehrke, who shipped it, it appears that this box had the following characteristics: It was made of pieces of 3/4-inch thick wood secured together by two-inch nails; four of its six sides were approximately five inches by twelve inches, and the remaining two sides were about twelve inches by twelve inches. According to the plaintiff and Gehrke it had cleats on two sides near the top to make a hand-hold. Apparently, before the waybill was affixed, there was visible a designation of 'Top' on that side--the 5 12 side which was above the cleats. The station agent did not observe the cleats and considered the two 12 12 sides as the top and the bottom of the box. There was no metal strapping, wire, rope or tape around the box.

Gehrke took the loaded box in a truck to the Greyhound station in Santa Clara for shipment. A waybill indicated that a 57-pound package directed to the plaintiff was received at that station at 5:45 p.m. on April 16, 1964. Gehrke inspected the box visually to be sure it was properly together before he picked it up and carried it to his truck. It appeared to be in good condition at that time, and, as well, when he left it at the bus station. In carrying the box he carried it by the handles. There was no strapping on the box. Gehrke acknowledged that metal strapping would have made the box more secure.

There were no records kept or available to show on which particular bus or busses the box was transported, or the specific employees who were involved in handling it. An employee of the bus company testified that in all probability the package would have been transported into San Jose on a bus without special facilities for baggage; that there it would have been transferred to a through bus from San Jose to San Francisco; and that finally it would have been placed on a third bus from San Francisco to San Mateo. In a bus without a separate baggage compartment under the seats, baggage and shipments may be carried on an overhead rack, on a seat, or on the floor by the driver.

The San Mateo station agent testified that he took the package out of the lower level of the baggage compartment of a bus which arrived from San Francisco at 10:15 a.m. on April 18th, carried it into the express room and placed it on a shelf. The box looked intact, and he did not turn it over or see if any portion of the box was coming apart. He slid the box in the bus to where he could get his hands on it, carried it against him with one of the 12 12 inch sides facing the floor and placed it on the shelf so that it rested on that side. He did not remember seeing any handles on the box, nor did he know of any designation on the box indicating which was the top or the bottom. He noticed the waybill fastened to one of the smaller sides which he described as 'one of the ends' of the box.

That morning the plaintiff received a telephone call notifying him that a package from Santa Clara had been received at the San Mateo bus station. He drove down in a pickup truck, parked across the street from the station driveway, went to the ticket office and paid the freight charges. He was directed outside to the door of the freight office to receive the package. Meanwhile, the station agent, without inspecting the box, removed it from the shelf and took it to the doorway of the freight office. He could not remember whether he handed it to the plaintiff or set it on the floor.

The plaintiff testified that he found the box sitting on the door sill with the handles and a 5 12 inch side bearing the way-bill on top. He knew that the cutters were in the box, and having handled them before, he was aware they were heavy. He picked up the box, held it right in front of himself, close to his body, and walked away. Nothing unusual occurred while he was picking up the box, nor was there anything unusual about the way he was carrying the box. Plaintiff felt quite comfortable. He did not bang into anything with the box or drop it. Nothing came in contact with the box and he had no notice that it was going to come apart.

After the plaintiff had taken four or five steps (the station agent identified a point 15 feet from the freight office door where the cutters chipped the driveway), the box suddenly fell apart. The plaintiff was thrown off balance, and made an exaggerated but unsuccessful movement to get away from the cutters. One of the cutters struck him and cut open his right thigh. He subsequently observed in picking up the pieces, that one 12 12 inch side of the box had broken away with the bottom 5 12...